Friday, May 31, 2019

No, Grousing Comedians Are Still Not Right That Audiences Are Too Sensitive

by Neil H. Buchanan

One particularly frustrating aspect of the all-purpose, empty complaints about so-called political correctness is that they are actually bipartisan.  That is, right-wingers -- prominently including Donald Trump -- constantly whine that all of our problems are caused by being too politically correct ("We can't even shoot immigrants at the border, ya know?" "Why can't police rough up suspects?" "People shouldn't feel bad about saying 'Merry Christmas!"), and everyone else rejects those particular examples but then says, "Even so, PC culture can get out of hand."

Let us leave aside the ongoing reality that no one can actually define the key term here in a way that does not boil down to "being sensitive to things that I don't care about, even though I'm outraged when people are insensitive to what I do care about."  In fact, most of the time, the complaint is really about being expected to care about other people's concerns.

Lack of a clear idea about what is truly at stake rarely stops people from arguing passionately that they are right.  What is especially interesting, however, is how comedians -- a group that strongly leans left in its political attitudes, most definitely including social and cultural matters -- constantly grouse about their audiences being too sensitive.

Back in 2006, "Seinfeld" alumnus Michael Richards was seen on video unleashing a nasty stream of racist bile at some African-American hecklers during his stand-up act.  Even though he apologized and his friends did not defend his remarks, Jon Stewart used the occasion on his show to complain that audience videos were making it difficult for comedians to hone their acts before live audiences.  The idea, I guess, was that a comedian needed to be able to make some racist and sexist comments while working toward what might be funny?

More recently, English comedian Ricky Gervais has practically turned his career into an effort to say, "You're all PC policing me, but I don't care.  In fact, I don't care so much that this is pretty much all I'm going to talk about.  How much you're not bothering me.  At all."  One might imagine that his time would be better spent figuring out what his audiences would not find offensive, but complaints about political correctness are (in entertainment almost as much as in politics) the lazy way to express grievance.

I clearly hold a low opinion of those who hide behind such complaints, but is there a limit to my contempt?  Are there situations in which "PC has gone too far"?

Thursday, May 30, 2019

Keeping Populist Movements From Going In the Wrong Direction(s)

by Neil H. Buchanan

Because this column discusses populist movements, some of which are related to taxes, I will start with a reminder: The Boston Tea Party was absolutely, positively not a revolt against taxes.  It was, instead, a revolt against taxation without representation and against a regressive sweetheart deal for a politically connected corporation.

I bring up this bit of history in light of two relatively recent populist phenomena: the Occupy movement, which began in a park near Wall Street in 2011, and the Yellow Vests movement, which began last year in France in response to a proposed gasoline tax increase by the Macron government.

In the case of Occupy, the movement quickly became identified with clear leftist inclinations, whereas the Yellow Vests have been disparaged for the "vagueness of their demands and the lack of a leadership to negotiate with."  The Yellow Vests spawned some violent protests, but no one is quite sure what they really are (or were) and whether there is anything to be learned from that spasm of political anger.

Here, I want to offer a relatively brief set of thoughts about the dangers of populist movements and how they can be hijacked by bad actors.

Tuesday, May 28, 2019

Clarence Thomas's Misplaced Anti-Eugenics Concurrence in the Indiana Abortion Case

by Michael C. Dorf

In a per curiam opinion in Box v. Planned Parenthood of Indiana and Kentucky, the Supreme Court: (a) reversed the Seventh Circuit opinion that had found Indiana's fetal remains disposal law unconstitutional under the rational basis test; and (b) denied review of that same court's invalidation of Indiana's law forbidding abortions based on the race, sex, or disability of the fetus. The big-picture takeaway here should be that the Court as a whole is not eager to dive into abortion jurisprudence. That means that the wave of restrictive state abortion laws we are seeing will not likely force the Roberts Court's hand. The Chief Justice apparently has enough allies among the other conservative justices who will be willing to let stand lower court rulings striking down such laws under existing precedents.

To be sure, "not likely" does not mean impossible. In denying cert with respect to the selective abortion provision, the Court specifically invoked the novelty of the issue and thus the appropriateness of percolation among the lower courts before diving back in. It is relatively easy to imagine a couple of the justices who were willing to sign onto that approach in Box taking a more aggressive stance when faced with an issue that is less novel -- such as the application of the undue burden test to Louisiana's admitting privileges requirement for abortion providers, at issue in the pending cert petition in the June Medical Services case. Accordingly, if Box means that the Court is unlikely to outright overrule Roe/Casey in the very short term, it says less about the likelihood of imminent further chipping away.

Meanwhile, the fireworks in Box could be found mostly in Justice Thomas's concurrence. Partly this was a matter of tendentious language. He refers to the abortion of a "child," without distinguishing early from late abortions. He also refers to patients who wish to have abortions as "mothers," prompting an objection from Justice Ginsburg (in a footnote). And most provocatively, Thomas writes at length about what he sees as the strong connection between abortion and eugenics.

Whether Assange (or Anyone Else) is a "Journalist" is an Unimportant and Perhaps Even Meaningless Question

by Michael C. Dorf

At least some of the counts of the superseding indictment filed last week against Julian Assange appear to apply to activities that conventional reporters routinely undertake. Does that mean the indictment violates the First Amendment? Not necessarily. As I'll explain briefly below, it's not even clear that a responsible national security reporter for a bona fide news organization would be protected by the First Amendment for doing what Assange stands accused of doing, even though such reporters do so regularly.

I'll then pivot to problematizing an issue that has consumed many non-lawyers (and even some lawyers who don't know better): whether Assange is a journalist. As I'll explain, so far as the First Amendment as construed by the SCOTUS is concerned, there's no such thing as a journalist.

Friday, May 24, 2019

Fed Courts Exam 2019: Pharma Litigation and State Habeas

by Michael C. Dorf

Per my usual custom, I am posting the exam I administered to my Federal Courts students. It was an 8-hour open-book take-home. Blog readers should feel free to spend more (or less) time on it. Submit answers (which I won't grade) in Comments. I apologize that this exam isn't as funny as some of my others (though it does contain the obligatory Trump tweet, complete with misspellings).

Thursday, May 23, 2019

Does Employment Division v. Smith Apply in Indian Country? Thoughts on a SCOTUS Ruling Finding Hunting Right Under 1868 Crow Treaty

by Michael C. Dorf

On Monday, in Herrera v. Wyoming, the Supreme Court ruled that an 1868 treaty between the Crow tribe and the US entitled a tribe member to hunt elk in violation of state law. The case divided the Court on mostly ideological grounds, with Justice Gorsuch breaking ranks to join the liberal wing in a 5-4 majority opinion authored by Justice Sotomayor. However, the actual substance of the disagreement was not ideological.

Justice Alito and the remaining conservatives dissented on the ground that a 1995 Tenth Circuit case involving the Crow had definitively resolved the issue, so that Herrera was bound under the doctrine of issue preclusion. Other than an aside deeming the majority's construction of the treaty "debatable," the dissent did not address the core issue. Meanwhile, the majority opinion is curious in a number of respects and raises an important question about general rules and exceptions.

Wednesday, May 22, 2019

Judge Mehta's Subpoena Ruling is a Tour de Force: SCOTUS Can Undo It Only Through Partisan Hackery

by Michael C. Dorf

On Monday, US District Court Judge Amit Mehta issued a thorough and persuasive opinion rejecting the arguments by President Trump's personal lawyers for an order invalidating a congressional subpoena for financial records that was issued to an accounting firm that has worked for Trump and his businesses. The next stop for the litigation will be the US Court of Appeals for the DC Circuit and thence the Supreme Court. As I'll explain, Judge Mehta's opinion makes clear that the law clearly favors Congress (really the House) in this dispute. That does not guarantee that Trump will ultimately lose. However, Trump can only prevail in the SCOTUS if the conservative majority engage in hypocritical partisan hackery.

Tuesday, May 21, 2019

Trump Is Part of A Scary Global Trend, But He Is Still a Bad Joke

by Neil H. Buchanan

There is a worrisome and puzzling trend, not merely among the punditocracy and politicians but even among journalists who purport to be neutral arbiters of the facts, to treat Donald Trump's reelection chances as not only strong but perhaps even insurmountable for Democrats.  Last week, I wrote a column decrying that trend, arguing that Trump's deep unpopularity -- and his unwillingness to do anything but feed the blood lust of his base -- all but guarantees that he will lose in 2020, probably by a large margin.

To be clear, even if my prediction is correct, I still believe that we will then face an existential constitutional struggle, because it is inconceivable that Trump will accept losing -- by any margin.  We might already be in the end stages of our constitutional democracy with no way to save it, even as we naively think that there is still a way back.  (Whatever else I might think about Joe Biden, I do admire his willingness to build a campaign around the idea that America is better than Trump and can be renewed.)  That possibility should be everyone's central concern.

In addition, I readily concede that my prediction could turn out to be wrong for a number of reasons.  Republican efforts to suppress the votes of minorities and young people will intensify.  The Democratic nominee might not be able to motivate her (or his) voters to turn out, although that seems highly unlikely.  The media could once again play along with a ridiculous smear job, painting the Democrat as corrupt or worse.  Trump supporters could physically block access to voting booths in Democratic areas.  And so on.

This might not, in other words, end well.  But today's question is how to think about Trump's fundamental weakness in a world in which people like him are becoming stronger and stronger.  He might be a buffoon, but he is merely one of many buffoons who seem to be having a good run.  Does that global perspective change how we should think about this?

Monday, May 20, 2019

John Bolton Wants a War With Iran. Trump Doesn't. So Why Did Trump Hire Bolton?

by Michael C. Dorf

Yesterday, President Trump tweeted: "If Iran wants to fight, that will be the official end of Iran.  Never threaten the United States again!" The saber rattling seems calculated to undercut the emerging view of Trump as the dovish good cop to National Security Adviser John Bolton's bad cop. After all, just a few days earlier, the Washington Post reported that Trump has been frustrated by the hawkish views of Bolton and Secretary of State Mike Pompeo, both of whom seem to be itching for a war with Iran.

Despite yesterday's tweet and Trump's denial of any "infighting," the WaPo report rings true. After all, Pompeo and especially Bolton have long been hawks on Iran, whereas Trump came to office exaggerating his past opposition to the Iraq War but genuinely seeming to disdain further commitments of US troops to war in the Middle East. It was one area where he seemed to outflank Hillary Clinton to her left, and sensibly so, even if Trump's primary motivation was backwards (chiefly aiming to save treasure and only secondarily hoping to avert bloodshed).

Given the difference in perspective, some tension was inevitable. So why did Trump select Pompeo and Bolton? I'll offer a few thoughts here, none of them especially reassuring.

Sunday, May 19, 2019

Roe, Judicial Review, and the Myth of Abortion as a Constitutional Outlier

By Eric Segall

In Roe v. Wade, seven Supreme Court Justices signed on to an opinion detailing the substantial burdens on women and their families of abortion bans and balanced those harms against the states’ interest in the health of the mother and life of the fetus. They came up with the famous or infamous trimester approach which in practice resulted in a bifurcated regulation of state abortion laws. Prior to viability, states had little authority to regulate abortion while after viability states could ban all abortions subject to exceptions for the health and life of the mother. Eventually, Planned Parenthood v. Casey modified the law to allow regulations on abortion that do not amount to an undue burden on a woman’s right to choose, but complete bans were still unconstitutional until after viability.

There is a myth propounded by legal scholars, commentators, pundits, and even Supreme Court Justices that Roe as initially decided, and later Casey, are constitutional outliers. That, leaving aside the admittedly difficult policy implications triggered by the issue, the Court’s abortion jurisprudence was somehow constitutional interpretation at its worst. For example, Professor Michael Paulsen wrote that the problem with Roe “is that it has absolutely no basis in the text, structure, or history of the Constitution. No rule or principle of law fairly traceable to the text...structure, or ... historical understanding of an authoritative decision of the people, remotely supports the result reached in Roe. In terms of fair principles of constitutional interpretation, Roe is perhaps the least defensible major constitutional decision in the Supreme Court’s history.”
Similarly, Justice White dissenting in Roe said that “the Court engages not in constitutional interpretation, but in the unrestrained imposition of its own, extra-constitutional value preferences." And even the famous liberal and pro-choice constitutional law professor John Hart Ely famously said that Roe “is not constitutional law and gives almost no sense of an obligation to try to be.” I could reproduce hundreds of similar quotes concerning Roe and its allegedly illegitimate method of constitutional interpretation.
This criticism is utter nonsense. Roe and Casey may be right or wrong, or good or bad, but they are both typical examples of how the Court decides, has always decided, and will likely always decide, constitutional questions, just with larger stakes. No reasonable person can deny that requiring a woman to carry a fetus to term against her will is a serious denial of her personal freedom that carries substantial unwanted consequences. It may also be true that the states’ interest in the fetus’ right to life outweighs that infringement, but that difficult balancing of important and conflicting values is commonplace in constitutional law. As Dean Erwin Chemerinsky has said, “the desire for value-neutral judging in constitutional cases is an impossible quest because the need to balance competing interests is inescapable ….”

Friday, May 17, 2019

Trump Is an Accident, Not an Intimidating Force

by Neil H. Buchanan

A bit more than two months ago, the title of one of my columns asked: "Is the 2020 Election Going to Be An Easy Win for Anyone the Democrats Nominate?"  There, I made the case that Trump simply will not be able to break above his pathetic job approval numbers, if for no other reason than that he is not even trying to appeal to anyone but the forty percent of the country that has already quaffed his Kool-Aid.

It would, of course, be foolish for Democrats to take a win in 2020 for granted.  Setting aside my oft-stated belief that Trump will not peacefully leave the White House no matter how convincingly he loses next November 3, it is essential that Democrats not take anything for granted.  Republicans will continue to suppress the votes of young and nonwhite people, and Trump is even more shameless than the Republicans about sliming his opponents (which is quite an achievement).

Moreover, Democrats should have learned from 2016 that turnout is everything.  Hillary Clinton was by far the preferred choice of American voters, but millions of people used the (accurate) polls predicting her easy win as a reason not to bother helping her win.  Today, it is certainly wise for Democrats to keep each other on edge, lest they think that the ignoramus in the White House could never bumble onto another strange path to an electoral win.

But we are now looking at the downside of that vigilance.  Actually, two downsides.

Thursday, May 16, 2019

Between Tyranny and Civil War: Trump's Dangerous Tweet, Venezuela, and Game of Thrones (Contains Spoilers)

by Michael C. Dorf

Recently, Donald Trump retweeted a suggestion by Jerry Falwell Jr. that he, Trump, ought to get two extra years added to his presidency, because the Russia investigation improperly robbed him of his opportunity to govern during the first two years of his term. According to the Washington Post, White House officials said Trump was joking. Although Trump is not exactly renowned for his sense of humor, we can probably assume that he has no plans to seek two extra years.

However, as Prof Buchanan has repeatedly warned (e.g., here with links to prior warnings) there are reasons to worry that Trump could refuse to accept an electoral defeat through bogus claims of voter fraud and similar shenanigans. Speaker Pelosi takes this prospect seriously enough to have said that the 2020 Democratic presidential candidate needs to win by such a large margin as to render any contest by Trump untenable. And as the WaPo story linked above reminds readers, during a 2016 debate with Hillary Clinton, Trump twice refused to commit to accepting the results of the election if he lost.

Thus far, most discussion of these episodes has focused on how Trump undercuts our democracy and thus brings us closer to tyranny. That is indeed a serious concern, but Trump's dalliance with non-democratic means of achieving and retaining power also risks what might be regarded as tyranny's mirror image: civil war and anarchy.

Wednesday, May 15, 2019

The Stare Decisis Issue in the State Sovereign Immunity Case (Media Critic Edition)

by Michael C. Dorf

For a case that decided a relatively obscure question -- whether an implicit constitutional principle of sovereign immunity shields a state from lawsuits in the courts of other states -- Monday's SCOTUS ruling in Franchise Tax Board of California v. Hyatt -- garnered considerable media attention. The Washington Post ran two stories (here and here); so did the NY Times (here and here), adding as a bonus an op-ed by Prof. Leah Litman; and NPR's Morning Edition devoted a 3-and-a-half-minute segment to host Rachel Martin's interview of SCOTUSblog's Amy Howe about the case. Who knew the public cared so much about state sovereign immunity?!

But of course the media coverage reflects something else entirely. Justice Breyer's dissent in Hyatt criticized Justice Thomas's majority opinion for inadequately justifying the overruling of Nevada v. Hall, a 1979 case that had come out the other way. Most of the media coverage of Hyatt focused on whether the Court's willingness to overrule Hall portends a willingness to overrule more consequential precedents, especially Roe v. Wade.

That's fair enough, I suppose. The relatively small number of people who want to know what's really going on can read the case itself. They (by which I mean you, dear reader) can also consult my latest Verdict column, in which I provide some context for the sovereign immunity issue before pivoting to the question whether Justice Thomas's reliance on constitutional structure and history contradicts the criticism he and other conservatives frequently level at liberals for finding implied rights in the Constitution. (Spoiler: It does.)

Here I want to critique some of the media coverage of the stare decisis issue in Hyatt and beyond, before setting forth my own analysis of the stare decisis question. I'll focus most of my attention on the NPR segment, because it best exemplifies what goes wrong when journalists without any legal expertise try to cover even modestly complex legal issues.

Tuesday, May 14, 2019

Atheists, Public Life, and Condescension

by Neil H. Buchanan

"[I]n some parts of secular, liberal America, there is a skepticism about religion that can veer into disrespect."  I pulled that quote from a short column today by New York Times columnist David Leonhardt, who was otherwise arguing that atheists are subject to discrimination in American public life.  Why the swipe at liberals?  And no matter the reason, is what he wrote true?

I qualify as a denizen of secular, liberal America, and I certainly am skeptical of religion.  I am more than willing to say that my skepticism -- with very important caveats and in context -- does not merely "veer into disrespect."  I respect people's right to practice religion and to make personal decisions based on religious beliefs, but do I respect the substance of those decisions?  Not inasmuch as they are justified by simple reliance on religion.  Do I disrespect the people who make those arguments?  Sometimes yes, sometimes no.  Let us dive deeper into this question.

Monday, May 13, 2019

Fiscal Hardball: House Democrats Need to Use Their Appropriation Authority to Rein in the Out-of-Control GOP

By Eric Segall

(Cross-posted @ TakeCare)

The United States Constitution places the initial power to fund the entire federal government squarely in the hands of the United States House of Representatives. Article I provides that “All Bills for raising Revenue shall originate in the House of Representatives….” Moreover, "no Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.” The Founding Fathers intentionally placed this spending authority in the “People’s House” because  it, as opposed to the Senate, “was more immediately the representatives of the people, and it was a maxim that the people ought to hold the purse-strings.” Although the Senate may add amendments to bills suggesting government spending, the House has to agree before such a bill may become law.
Today, the Democrats, and the people they represent, hold these all-important purse strings, and they should use them to fight the on-going rule of law violations and norm breaking behavior being committed by the Republican controlled Senate and President Donald Trump. For example, the House wants to and should have the right to see the entire Mueller Report, but it is being stonewalled by broad and “bogus” executive privilege objections and other political machinations by the Trump Administration (legitimately privileged materials could be reviewed by members of the House outside the public eye). No doubt the House will seek judicial relief, but that could take months or longer, and given the five Republicans on the Supreme Court, the outcome will be very much in doubt. 

Friday, May 10, 2019

Is Philosophy Easy? Too Many Economists Seem to Think So

by Neil H. Buchanan

In my columns, I often address economists' substantive arguments, such as my recent columns (here and here) severely criticizing the "modern monetary theory" true believers who largely populate Bernie Sanders's and Alexandria Ocasio-Cortez's ranks of advisors.  Those critiques are not objections to economists' attempts to wade into territory where they do not belong but are instead simply about muddle-headed economics.

One of the recurring themes of my columns over the years, however, has been to observe and comment on economists who, in the now-current phrase, do not stay in their lane.  Back in 2013, for example, I wrote (here and here) about economists who, as I phrased it, try to "commit politics."  The idea was that, whatever one might think about the skill set that is drummed into economists from Day One of their first undergraduate course -- and, to be clear, my thoughts about that brainwashing exercise are not kind -- it is almost touching to watch these guys flail about when they try to discuss political issues.

The reason for their difficulty is abundantly clear.  Nearly all economists constantly reinforce the idea among themselves that they are wise and neutral scientists who have divined the truth, if only the venal and stupid politicians would listen.  When it comes time to engage with those politicians, then, economists apparently assume that politics is easy (no math required!), which means that anyone can do it.  "And if," such an economist might think to himself, "I am willing to lower myself to talk politics, I don't need to do any actual work or preparation, because it's all just a matter of instructing a bunch of simpletons with my brilliance.  How hard could that be?"

Good question.

Thursday, May 09, 2019

William Barr is Trump's Roy Cohn, But Are Neil Gorsuch and Brett Kavanaugh His Warren Burger, Harry Blackmun, and Lewis Powell?

by Michael C. Dorf

Frustrated by then-Attorney General Jeff Sessions's display of integrity in recusing himself from the Russia investigation, Donald Trump famously asked "Where's my Roy Cohn?". The question would be shocking if the public had any capacity left to be shocked. After all, thirty years before Trump's expression of longing for Cohn, the infamous red-baiter was disbarred for "dishonesty, fraud, deceit and misrepresentation." The notion that such a character ought to be the country's chief law enforcement official is extraordinary.

As House Intelligence Committee Chair Adam Schiff observed, in William Barr, Trump finally may have his Roy Cohn. I do not wish to suggest that Barr's massive spinning of the Mueller Report or his parroting of Trump's accusations of "spying" rises to the level of Cohn-esque sins, but I would hardly be alone in noting that in the sense that Trump cares about most, he appears to have found his Roy Cohn in Barr: a lawyer who draws a paycheck from the US Treasury but, to the maximum extent possible, operates as a mouthpiece for Trump the man rather than the institutional interests of the US or even the presidency.

There may be wisdom even in scoundrels. Roy Cohn was a crass version of what we academics would call a "legal realist." He used to say: "Don’t tell me about the law, just tell me who the judge is." Well, when it comes to the looming legal battle over executive privilege, we know who the judges are: the nine justices of the Supreme Court.

In this column, I consider how the Supreme Court might handle a dispute involving executive privilege. I note as an aside that not every clash between Congress and those resisting its inquiries will involve executive privilege. For example, as I discussed last week, we could also see litigation over what counts as a legitimate congressional inquiry. But for now, let's focus on executive privilege.

In United States v. Nixon, a unanimous Supreme Court rejected President Nixon's blanket assertion of executive privilege, thus affirming a lower court order that Nixon hand over tapes subpoeanaed by a district court judge on an application by Watergate special prosecutor Leon Jaworski. The Court's opinion was written by Nixon appointee Warren Burger and joined in full by seven other Justices, including Nixon appointees Harry Blackmun and Lewis Powell, Jr. (Nixon's fourth appointee, William Rehnquist, did not participate). Less than three weeks later, Nixon resigned. Should a current conflict between the president and Congress reach the Supreme Court, will Trump's appointees likewise turn their back on the man who put them where they are now?

Wednesday, May 08, 2019

Michael Lewis Doesn't Think To Ask Whether Compensation for Lost Wages Makes Sense

by Michael C. Dorf

Longtime readers of this blog know that I am a sometimes-critical fan of author Michael Lewis. (Here are links to my columns on The Big Short, Flash Boys, and Boomerang. I have also occasionally made reference to Liar's Poker, Moneyball, and The Blind Side.) Lewis now has a podcast called Against the Rules that is generally quite good, although, like some of his other work, a bit too taken with its framing metaphor. The basic idea Lewis explores is that neutral arbiters have increasingly come under fire in a wide variety of contexts, which is dangerous, because societies need neutral arbiters.

Episode 5, The Neutral, begins with a story about how difficult it is to be a referee, before turning to the remarkable case of Ken Feinberg, who, over the last four decades, has become the country's go-to authority for divvying up victim compensation. Lewis rightly expresses amazement that one individual wields as much power as Feinberg does, eventually pivoting to the characteristics Feinberg possesses that enable him to play this role effectively. Before that pivot, however, the podcast contains a discussion of victim compensation in tort that warrants some discussion and very substantial criticism.

Tuesday, May 07, 2019

An Intermediate Step Toward Trump's Refusal to Leave: Mocking the Realists

by Neil H. Buchanan

As one of the people who has been willing to state openly for years that Donald Trump will not leave the White House under any circumstances short of being dragged out by uniformed officers, I have been trying to imagine and then explain how what was once unthinkable will actually go down.  It now seems that I have left out a step: intramural mockery among anti-Trump politicians and commentators.

Seeing the process in its beginning phases is both depressing and somehow seems entirely predictable (even though I never predicted it).  Understanding how it works is important and perversely fascinating.

Monday, May 06, 2019

Conservatives Have Less to Fear From the Title VII LGBT Cases Than They Might Think: That's Good and Bad

by Michael C. Dorf

In both a Verdict column and an accompanying essay here on DoL last week, I argued that, if they remain true to their supposed textualist principles, conservatives will rule in favor of the plaintiffs in the LGBT Title VII cases next Term. That earned me scorn from both the right and the left.

From the right, Ed Whelan wrote in National Review that I, as a liberal, oughtn't to presume to tell conservatives what they ought to do, which is fair enough, I suppose, but he went on to say that I was wrong to criticize Judge Gerard Lynch's dissent in the Second Circuit case for distinguishing between dynamic implementation of a law and dynamic understandings of a law's purpose. "[T]he correct implementation of a law’s meaning can go beyond the drafters’ specific intentions," Whelan contended, but "claims about a law’s purpose can’t alter or supplement that meaning."

I'm not sure that's right, but as I argued on Twitter (to the extent that one can argue anything on Twitter, as opposed to merely asserting), the plaintiffs in the Title VII LGBT cases do not need to make any sorts of claims that the purpose of Title VII has altered or supplemented its meaning. Rather, as I explained in both the column and the DoL essay, the argument for the plaintiffs is that the meaning of discrimination based on sex always should have extended to cover anti-LGBT discrimination, even though the Congress that adopted Title VII did not intend it to do so.

Meanwhile, from the other side, various critics thought me naive for taking seriously the possibility that conservative justices would follow their jurisprudential commitments at the expense of their ideological ones. I get the criticism. One needn't think that conservatives are especially hypocritical to think that all judges and justices tend to see cases first in terms of their ideological priors and only then in terms of their ostensible jurisprudential commitments.

That said, I think that there are reasons to think that the conservatives' priors aren't--or at least oughtn't to be--very strong here. Unfortunately, those reasons are also a double-edged sword.

Friday, May 03, 2019

How Character Is Revealed: Barr, Comey, McConnell et al.

by Neil H. Buchanan

Donald Trump's personal defense attorney Bill Barr -- currently masquerading as the Attorney General representing the people of the United States -- has had quite a month.  Now, faced with a shockingly evasive and dishonest series of statements and actions by Trump's man, Barr's allies are pointing to the time after Barr was nominated to his current job, when plenty of people said good things about his integrity, being a "lawyer's lawyer," and all that.

None of that is actually relevant, of course.  Everyone had good reason, as they always do when a new person is hired, to hope for the best and to look for reasons to feel that such hope is justified.  Moreover, Barr was replacing an interim AG (Whittaker) who was a walking joke, who in turn had replaced the most nakedly partisan AG (Sessions) imaginable -- until now, of course.  Surely, having a former AG who had served a conservative (but not hyper-conservative) president in the previous century would turn out well, right?

We now know the answer, with Barr having added "snitty" to the nation's lexicon in the process of attacking the integrity, intelligence, and maturity of people who dared to challenge him.  Trump, as one conservative Washington Post columnist put it, "has finally found someone who licks his boots out of principle."  Ouch.

The most interesting analysis of Barr's behavior that I have seen comes from former FBI Director James Comey, who tried to explain in The New York Times earlier this week how people like Barr and now-departing Deputy AG Rob Rosenstein could become such toadies to Trump.  His short answer: Lack of character.

I think there is a lot to that theory, but it also leads me to think about the other people who are supposedly of high moral character who were supposed to stand up to Trump, especially Republicans in the Senate.  Whereas Comey is talking about people who had always acted decently and honorably but failed the test of resisting a menace, Senate Republicans (and, to be clear, many other Republicans at all levels of government) are people who have failed to act decently forever but were presumed to have a reserve of principle that would emerge when the time came.

In short, Comey is talking about morally empty people who had been acting morally almost on autopilot; I am talking about people who had been acting immorally but who were thought not truly to be morally empty.  But they are.

Thursday, May 02, 2019

"Free Speech, Free Press. Free Society?"

By Eric Segall

Today is “Law Day,” for which I have the pleasure of giving talks to the Savannah and Augusta Bar Associations on the assigned topic “Free Speech, Free Press, Free Society?” This blog post summarizes some of the ideas I shall express during those events.

There is little doubt that America values free speech and a free press far more than any other democracy in the world, even at times at the expense of other important values. Here are some representative examples.

Wednesday, May 01, 2019

The LGBT Plaintiffs in the SCOTUS Title VII Cases Do Not Rely on Changed Meaning

by Michael C. Dorf

In my latest Verdict column, I discuss the textualist argument for finding that Title VII covers LGBT discrimination, an issue on which the SCOTUS granted cert last week. I more or less endorse the view expressed by Chief Judge Katzmann of the US Court of Appeals for the Second Circuit: (1) The prohibition on discrimination based on sex encompasses a prohibition on discrimination based on sexual orientation or gender identity because of the necessary connection between both of the latter and sex; and (2) the case law already forbids much sex-role stereotyping of precisely the sort that is ingredient in LGBT discrimination. I consider counter-arguments that purport to work within textualism and find them lacking. I conclude therefore that the only plausible basis for ruling against the plaintiffs would have to rely on the fact that in 1964 the Congress that enacted Title VII did not subjectively intend or expect to forbid LGBT discrimination.

One could frame the issue somewhat differently. On DoL last week Prof Segall praised the "honesty" of Judge Posner, who characterized his court's determination that Title VII covers LGBT discrimination this way: "we, who are judges rather than members of Congress, are imposing on a half-century-old statute a meaning of ‘sex discrimination’ that the Congress that enacted it would not have accepted."

Although Prof Segall and I reach the same bottom line and take broadly similar views about these cases, here I'm going to push back a little against that characterization. My main objection concerns Judge Posner's use of the word "meaning." When courts say that "sex discrimination" encompasses sexual orientation and gender identity discrimination even though the Congress that forbade sex discrimination in employment would not have expected or endorsed that conclusion, they are not imposing a new "meaning" on the term "sex discrimination." Rather, they are holding that the meaning of "sex discrimination" has entailments that the 1964 Congress did not realize. That might seem like splitting hairs, but the difference has implications for the persuasiveness of the plaintiffs' argument with self-described textualist justices.