Monday, October 21, 2019

With Amici Like These . . .

by Michael C. Dorf

On Thursday of last week, the Supreme Court issued official guidance regarding the filing of amicus briefs. Most of it simply collects what's already in Supreme Court Rule 37, but even so it's useful. For a summary of the guidance (which is itself pretty short), here's a helpful article on Bloomberg. I'll offer some critical thoughts on a couple of points: (1) party consent; and (2) colors.

Friday, October 18, 2019

Must the US and Other NATO Members Aid Turkey if Syria Counter-Attacks?

by Michael C. Dorf

Numerous commentators (including yours truly) have condemned President Trump's precipitous withdrawal of US forces from northern Syria as a betrayal of our erstwhile Kurdish allies. It was and remains such a betrayal. Despite yesterday's announcement of a 5-day "pause" in operations--which was predictably and inaccurately hyped by Trump as a "great" deal that resulted from his "tough love"--Turkey apparently has no current plans to withdraw forces from its self-declared "safe zone" in northern Syria.

Thus, Turkey's incursion leaves alive the possibility of clashes between Turkish and Syrian and/or Russian troops. Such clashes in turn might result in a call for NATO involvement. Suppose Syria crosses the border and counterattacks. Suppose Russia, which has troops stationed in Syria about 20 miles south of the Turkish border, assists in such a counterattack. Would that constitute an "armed attack" under Article 5 of the NATO Treaty, thus obligating the US and other NATO countries to come to Turkey's defense?

Given the potentially catastrophic results of such a great-power conflict, one hopes not. Here I'll parse the key documents (the NATO Treaty and the UN Charter) to see whether we can reach that result.

Thursday, October 17, 2019

Buttigieg Jumps the Shark

by Neil H. Buchanan

Pete Buttigieg, it turns out, is a bit of a dick.  This was not supposed to be his brand.  He presented himself to the world as a thoughtful, modest uniter with Midwestern quietude and restraint who would move our politics forward -- the avatar of a new generation of people who have had enough of the old ways of doing things.  We wanted to like him.  I certainly wanted to like him.

Apparently, however, Buttigieg decided that this was no longer working.  It seems that his initial success in moving into the second tier of candidates who might break through -- not among the Three Septuagenarians leading the pack, but also clearly in a different category from Cory Booker and Amy Klobuchar -- gave him a taste for more.  Unfortunately for him, his boomlet ran its course as he faded out of double digits in national polls and has been muddling along in a land where people assume his future is as a Vice Presidential pick.

How to get out of that rut?  Figure out what will send the pundits hearts aflutter, of course.  Among the many possible ways to do that, he chose to go for full-on sneering aggression during Tuesday night's Democratic not-really-a-debate.  Hit 'em with the zingers.  Be remembered for something other than thoughtfulness.  (As I will note below, he has actually been doing this for awhile, but the debate was his formal launch as an old-style attack candidate.)

At one point, Buttigieg punched down at Beto O'Rourke by sarcastically scoffing: "I don’t need lessons from you on courage."  Yes, apparently you do, Mayor Pete, because O'Rourke was right about your timidity and political calculations about dealing (or not dealing) with gun violence.  Yet Buttigieg decided that sanctimony was more important than actually having anything to say.  As I said, dickish.

Here, I will explain why I think that this is a very bad look on Buttigieg; and more pointedly, I will argue that it means that he is not thinking about how his interventions are going to affect the eventual nominee, whether it is Buttigieg himself or anyone else.  This is what happens when someone gets too greedy for more attention.

Wednesday, October 16, 2019

The Costs and Benefits of Economic Sanctions

by Michael C. Dorf

It is better to be shocked with a taser than shot with a gun, but a shock from a taser is nonetheless extremely unpleasant. So too with economic sanctions, which unleash less destructive force than armed conflict but nonetheless can be nasty. I'll explore the point today with reference to Trump policies and the current controversy embroiling the National Basketball Association.

Tuesday, October 15, 2019

Tramp the Dirt Down

by Neil H. Buchanan

As the world tries to understand why Republicans have not abandoned Donald Trump, despite his violation of so many of their supposed principles -- Hint: It cannot be that he "does what conservatives want him to do" (and certainly not only that), because any Republican president would be substantively identical to Trump on taxes, the environment, labor law, and so on -- it is worth remembering once again that many of those principles themselves are indefensible.

And understanding what makes the modern conservative movement indefensible in turn calls for us to remember that the same symbiosis that currently exists between the US and UK in their political malfunctions (Brexit simply being Trumpism carried out by a number of mini-Trumps rather than one mega-corrupt Trump) existed at the onset of what American Republicans think of as the dawn of a new day under Ronald Reagan when he took office in 1981.

I am referring, of course, to Margaret Thatcher, whose rise to become Britain's Prime Minister predated Reagan's inauguration by more than a year and a half.  Although Thatcher mouthed various platitudes -- including quoting St. Francis of Assisi: "Where there is hatred, let me sow love" -- she was extremely hard-edged (and not a veteran of B-movies) and thus was never able to summon Reagan's what-me-worry optimism.  Despite their stylistic differences, the two of them began the long slog that led to our current historically gaping levels of inequality, environmental catastrophe, and attempts to block or roll back civil rights gains.

Why should we care about Thatcher now, and what can we learn from thinking about her?  The short answer is that she was the leading figure in the deformation of the modern world.  While a young grifter named Donald Trump was busy discriminating against African Americans in New York City rental housing while making up stories to feed the press about his nonexistent greatness, Thatcher and her followers carried out a political agenda that made something like Trumpism both possible and inevitable.

Monday, October 14, 2019

Justice Neil Gorsuch: Hubris Masquerading as Modesty

By Eric Segall

Last Tuesday, the Supreme Court heard three cases raising the issue whether Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination "on the basis of sex," protects gays, lesbians, and transgender persons. During the oral argument, Justice Neil Gorsuch conceded that the textual issues were very close and then asked Professor David Cole, one of the plaintiffs' attorneys, whether a judge should "take into consideration the massive social upheaval that would be entailed in such a decision, and the possibility that -- that Congress didn't think about it ...  That's it. It's a question of judicial modesty."

This paen to "judicial modesty" is consistent with many passages in Gorsuch's new book, "A Republic If You Can Keep It," which I reviewed here. For example, in that book, Gorsuch says he has two rules for his law clerks: 1) "Don't make stuff up," and 2) "When people beg, and say, ‘Oh, the consequences are so important,’ and when they say, ‘You’re a terrible, terrible, terrible person if you don’t,’ just refer back to Rule No. 1. And we’ll be fine." Recently Gorsuch also said that the founding fathers didn't want "nine old people in Washington sitting in robes telling everybody else how to live."

This rhetoric about modesty and deference, however, comes from a man who has already shown that he has no problem telling both the American people, and the states themselves, how they should govern their lives and their citizens even when constitutional text and its history do not suggest that judges should overturn the decisions of more accountable political officials.

Friday, October 11, 2019

House Impeachment Procedures

by Michael C. Dorf

Let's begin with what's clear.

1) Congress has the power to subpoena private citizens and past and present executive branch officials to testify and to produce documents so long as the witnesses and materials sought bear some rational relationship to a legitimate congressional purpose, including impeachment and potential legislation. The Trump administration's withholding of appropriated funds from Ukraine makes the present impeachment inquiry obviously relevant to Congress's power of the purse. So too, Trump's conduct--as indicated by his own statements--makes the inquiry relevant to consideration of impeachment. Absent identification of specific objections on national security, particularized executive privilege, or other pressing grounds, executive branch officials and private parties must comply with congressional subpoenas. A court has rightly rejected Trump's claim to the contrary in litigation over Trump's financial records. Likewise, the White House Counsel letter to Congress asserting the president's right to refuse to "participate" in the impeachment inquiry is "bananas."

2) The key claim in the White House Counsel letter is that the procedures to be used in the House for the impeachment inquiry are unfair and thus unconstitutional. This is a very very bad claim. Article I gives the House "the sole Power of Impeachment" and grants it the power to "determine the Rules of its Proceedings." The letter cites procedures employed in prior presidential impeachments as precedents, but does not provide any reason to conclude that the House at the time thought it was constitutionally obligated to use the procedures it did or was setting a precedent that would be binding in the future. In Nixon v. US, the SCOTUS said that a challenge to the procedures used for a judicial impeachment trial in the Senate presents a non-justiciable political question, relying substantially on the fact that Article I assigns the Senate "the sole Power to try all Impeachments." The parallel language regarding the House means that its procedures as well would not be subject to judicial second-guessing.

So what's unclear? One question (that I'll address very briefly) is remedy. A second question concerns the most prudent course for the House to follow.

Thursday, October 10, 2019

Athletics and College Admissions at Harvard and Beyond

by Michael C. Dorf

Last week, Federal District Judge Allison Burroughs issued a 130-page opinion rejecting a challenge to Harvard College's admissions program. The lawsuit on behalf of Students for Fair Admissions charged that Harvard discriminates against Asian American applicants in violation of Title VI. Because the Supreme Court has construed the prohibition on racial discrimination in Title VI as coextensive with the Fourteenth Amendment's Equal Protection Clause, the ruling in the case has implications for public as well as private colleges and universities--assuming it stands up on appeal.

Much of the press coverage of the Harvard case has treated it as a test of the legality of race-based affirmative action. And indeed, it may prove to be that. Although Judge Burroughs applied existing SCOTUS case law allowing the consideration of race as a plus factor but not a quota and allowing colleges to seek diversity but not racial balancing, the most recent articulation of those principles occurs in a 5-4 ruling by Justice Kennedy. It is conceivable that Justice Kavanaugh or Chief Justice Roberts or both will reaffirm the permissibility of affirmative action in a future case, but it is more likely that a conservative majority will either reject the Bakke/Grutter/Fisher line of cases entirely or reinterpret those cases so narrowly as to effectively eliminate race-based affirmative action. Whether that happens in the Harvard case or some future case remains to be seen.

For what it's worth, I regard it as unfortunate that so much of the discussion of the Harvard case has gotten tied up in a discussion of affirmative action. I understand why that would be so from the perspective of affirmative action's critics. To them, the goal of increasing the enrollment of African Americans and Latinx students necessarily means decreasing the enrollment of other racial groups, including Asian Americans.

But that oughtn't to be the only basis for objecting to discrimination against Asian Americans. Liberal supporters of affirmative action could join its critics in condemning what may be a corrupt bargain, whereby colleges discriminate against Asian American applicants to enable affirmative action for African American and Latinx students while preserving white privilege. Or at least we could so join together if we were persuaded that's what is going on. Is it?

Wednesday, October 09, 2019

I Know It's Really U.S. Cultural Imperialism, But I Like It

by Neil H. Buchanan

I suppose that, in early 1933, there must have been intellectuals scattered about the world thinking about relatively lightweight topics like popular music.  They surely knew that important things were afoot politically, especially in Germany, but they likely had no idea that the Reichstag fire was imminent.  Today, at least we have reason to know that something like that is all too possible.

Wikipedia helpfully explains that "[t]he term 'Reichstag fire' has come to refer to false flag actions facilitated by an authority to promote their own interests through popular approval of retribution or retraction of civil rights."  Today, as Donald Trump's political nightmare deepens and he becomes increasingly untethered to even his abnormal version of normal day-to-day behavior, it seems more than reasonable to wonder what extreme and desperate measures he will take to save himself.

Groups of his supporters -- possibly even including some in Congress, but certainly some among the people on whom he is counting to take to the streets to save his presidency -- are surely also thinking along such lines.  One reason that it has not happened thus far is that Trump has seemed relatively untouchable, with the Mueller report inexplicably having had virtually no impact and Senate Republicans solidly behind him, no matter what he has done.

I write today gripped by a grim near-certainty that something truly catastrophic is in our future.  The reasons that we might be optimistic that people would not do this -- basic human decency, a sense of limits, worry about being found out -- seem naive at best when applied to Trump and his cultists.  Unlike the people in 1933, most of whom presumably did not yet have reason to believe that the rising nationalists in Berlin were capable of doing anything so horrible, we are reduced today to the choice between facing this reality or living in denial.  But other than sheer hope, there is little reason for anything but pessimism.

What to do?  Like those people whom I imagined living their lives back in 1933, I am going to think about popular music!  Why?  Because it is better than worrying about something over which we have no control and which is likely to fundamentally change the future.  Why not sing and dance instead?

Tuesday, October 08, 2019

The Way to Stop the Title VII Parade of Horribles is to Stop Parading the Horribles

by Michael C. Dorf

Today the SCOTUS will hear oral argument in two cases apparently presenting the questions whether Title VII's prohibition on sex discrimination thereby forbids discrimination based on sexual orientation and gender identity. As Prof Marty Lederman explained in a blog post last month, the framing of the cases as involving categorical policies excluding LGBT persons from employment is wrong on the facts, but he also argued (and I agree) that if the cases are framed that way the plaintiffs still should win. (Interested readers can find the brief by Marty, me, and three other law professors in support of plaintiff Aimee Stephens in the Harris Funeral Homes case here).

Today I want to address two arguments made against recognizing gender identity discrimination as sex discrimination. Both have the flavor of a parade of horribles and feature in various briefs by the defendants and their amici. The arguments are that if gender identity discrimination is deemed unlawful under Title VII, then it will be unlawful under other statutory prohibitions of sex discrimination and as a matter of equal protection, which, in turn, will be the end of sex-segregated restrooms in public and publicly funded institutions as well as the end of girls and women's high school and college sports.

My response is that the restroom concern is mostly hysteria, but that if it isn't, that's not a reason to reject the plaintiffs' claims here. I have the same response to the sports objection: If it's persuasive, that's a reason to draw the line there, not a reason to reject claims in a totally different context. Now I'll elaborate.

Monday, October 07, 2019

More Thoughts on Republicans' Cowardice ... or Maybe Something Else

by Neil H. Buchanan

This past Friday, I wrote with some bemused astonishment about the supposedly horrible consequences that Republicans would face if they were ever to ... shudder ... take a public position that was critical of Donald Trump.  Most directly, I was responding to a Washington Post article that described the fallout for four elected Republicans who have recently mouthed mildly not-pro-Trumpian comments -- Rep. Adam Kinzinger and Sens. Chuck Grassley, Mitt Romney, and Ben Sasse.

Why was it so laughable?  The unpleasant consequences mostly amounted to nothing more than name-calling (Kinzinger was called a "spineless sellout" -- ouch!) along with some attempts by Trump's troll army to invent new conspiracy theories about Romney.  To his credit, Romney had more negative things to say about Trump over the weekend, so apparently Romney is not too worried about whatever he is reading and hearing.

The larger context for this, of course, is that the mainstream press has decided to explain Republicans' cowering obeisance as a matter of their trying to avoid Trump's "wrath," "fury," "outbursts," and so on.  But what do those purportedly intimidating emotional explosions amount to?  Trump responded to Romney over the weekend by calling him a "pompous 'ass.'"  (Note that Trump put "ass" in quotation marks within his tweet.  I have no idea why.)  Although this does happen to be an accurate description of Romney, so what?  If that is what Republicans fear so much, then resigned laughter truly is the only possible response.

Here, I want to move past this silliness and stop avoiding the subtext, which of course is the unvoiced concern about Trump-inspired violence.  In addition, I want to emphasize a point that I made at the end of Friday's column, which is that this entire discussion about Republicans' spinelessness might simply be misguided, because it is quite possible that they are all perfectly happy with Trump, even now.

Friday, October 04, 2019

"Spineless" Does Not Even Begin to Describe the Republicans

[Note: Yesterday on Verdict, I published: "Economics in Deserved Decline: The Comeuppance of a Profession That Took Itself Far Too Seriously."  I will allow that column to stand on its own with further comment, at least for now.  The column below addresses a very different subject.]


by Neil H. Buchanan

Every now and then -- okay, almost every day -- I join thousands (if not millions) of people around the world in asking the same question: "What is it that makes Republicans so subservient to Donald Trump?"  There are facile answers, which I plan to rehash below before moving to something potentially more interesting, but it is nothing short of astonishing that we still have no answer to that very basic question.

After all, Trump was (we remind ourselves for the umpteenth time) not a Republican power player for most of his life.  Indeed, he was not even a Republican.  Yes, he has long held various views that overlapped with many key components of Republican orthodoxy, but even in his racism, he refused to play the nod-and-wink game that Republicans had perfected with their Southern Strategy's more genteel expression of bigotry.

All old news, of course.  Every time some new outrage comes along, however, we are treated to a fresh round of "What are they thinking?" questions about Republicans.  Now, faced with the biggest controversy yet and a possible impeachment vote and Senate trial, we are back where we have been many times before, with Republicans holding the line and the rest of us asking why they -- even faced with all this -- still will not stand up against Trump.

In this column, I will not provide an answer to that question.  I will, however, offer what I at least hope will be some semi-entertaining analysis of what we know about the supposedly horrific consequences that Republicans face when they go rogue.  The bottom line is that, unless there is a story that no one is reporting, the Republicans' spinelessness against Trump is simply impossible to excuse.

Looking at Thesaurus.com under "wimp," the four best synonyms in this context are: coward, pushover, jellyfish, and pansy.  Republicans, take your pick.

Thursday, October 03, 2019

The Problem Isn't Naming Originalism: A Response to Professor Rappaport

By Eric Segall

Professor Michael Rappaport recently wrote an essay for the Originalism Blog (a site that has been quite generous in publishing my critiques of originalism) titled "The Challenge of Naming the Modern Originalist Movement." In this piece, Rappaport concedes that there are many internal squabbles within the originalist movement and that these disputes can lead to different theories all labeled originalist. He also, suggests, however, that most originalists coalesce around Professor Larry Solum's two bedrock principles allegedly underlying all or most originalist theories: the fixation thesis (the original meaning of the text is fixed at ratification); and 2) the constraint thesis (that meaning constrains today's political actors, including judges). 

Rappaport discusses the various labels that originalsts use, such as New Originalism or his own Original Methods Originalism, and concludes that originalists need to be more sensitive to the naming of their respective theories and try to find more common ground. The entire essay, however, fails to wrestle with the two major defects with Originalist theory today, which are emphatically not a labeling problem. The real defects are that there is no coherence among different originalism theories, and that the fixation and constraint principles don't come close to providing a glue that can bind varying originalist theories together.

Wednesday, October 02, 2019

The Audience for the "Pitch Perfect" Lie

by Michael C. Dorf

My Verdict column for this week continues my praise (begun on the blog here) for the UK Supreme Court's ruling last week invalidating PM Boris Johnson's recommendation to the Queen to prorogue Parliament. I defend the ruling against the charge that courts--whether in the US or the UK--oughtn't to get involved in politics by invoking the limits of the political question doctrine in the US and John Hart Ely's justification of judicial review on "representation reinforcing" grounds. The charge that judicial review is counter-majoritarian or, worse, undemocratic, rings hollow, Ely argued, when the courts intervene to ensure that the People have their say. That, I contend, is what the UK Supreme Court quite expressly did.

My column also points to the irony that the UK--one of the last bastions of legislative supremacy--would embrace full-throated representation reinforcing judicial review at a moment when its pioneer (the SCOTUS) is retreating from it in important respects. I draw a contrast between the prorogation ruling and the US Supreme Court's professed timidity and restraint in last Term's political gerrymandering case. I say "professed" timidity because there are grounds to question whether the current Court's true goal is to stay out of politics, rather than to keep the judicial branch from interfering in political chicanery that benefits Republicans.

That last note leads me to worry that the Supreme Court will prevent lower federal courts from assisting Congress in its current impeachment inquiry if the Trump administration and its allies stonewall, as Rudy Giuliani, Mike Pompeo, and others have already suggested they will. Should that happen, the chief force behind House efforts to investigate will be politics. And that brings me to today's question: If the courts do not assist in compelling responses to subpoenas for documents and testimony--and even if they do--how will the politics play out?

That is a multifaceted question, of course, and I have no crystal ball. Accordingly, rather than attempt to answer the question in all its dimensions, I want to focus on one aspect of the underlying politics: whether Trump and his minions can get away with their apparent strategy of denying the existence of the smoking gun--the readout of Trump's phone call with Volodymyr Zelensky.

Tuesday, October 01, 2019

Downton Economics (psst, it’s not capitalism!)

by Neil H. Buchanan

I am choosing not to write about impeachment today, opting instead to discuss fantasy and history.  Specifically, I want to offer some thoughts inspired by the TV show "Downton Abbey" and its new sequel movie of the same name, the latter of which I saw this past weekend.  But fear not: You do not need to have seen (or liked) the show to follow the argument here.

After briefly summarizing the relevant aspects of the show and film, I will focus on a particularly odd theory that the writers invoke to justify the class-based aristocratic system that they celebrate so fondly.  Whatever else one might say about it, the economic system in "Downton Abbey" is not capitalism.  It is not socialism either, but it might be something akin to communism.  The Dowager Countess would be shocked!