Monday, November 23, 2020

A Good-Faith Exception for Unlawful Voting

by Matthew Tokson

On Saturday, eight Republican electors in Pennsylvania sued in state court, asking a judge to throw out all 2.5 million Pennsylvania mail-in votes. The plaintiffs claim that Pennsylvania’s 2019 mail-in voting law is unconstitutional because the Pennsylvania Constitution implicitly limits absentee voting to specific circumstances. Similar suits have been filed in several other jurisdictions. Rudy Giuliani’s federal suit currently on appeal seeks to invalidate all 6.8 million Pennsylvania votes based on an alleged Equal Protection Clause violation. And a rejected Texas lawsuit sought to throw out 100,000 votes cast at drive-thru polling stations, claiming that such voting violated Texas law. 

Set aside laches and the profound weaknesses of the merits claims in these suits. Assume that the challenged elections provisions—and the votes cast under them—were unlawful. How should a court think about voter reliance on existing law and the appropriate remedy for when unlawful votes are cast?

The exclusion of evidence in the Fourth Amendment context may provide an analogy. 

Another Way The State Legislature Scheme To Steal The Presidential Election Would Be Illegal

 by Michael C. Dorf

After meeting with President Trump on Friday, the Republican leaders of the Michigan legislature--Mike Shirkey, the State Senate majority leader, and Lee Chatfield, the speaker of the Michigan House--reaffirmed their commitment to following the law, under which the state's Presidential electors will be certified for the winner of the state's popular election. I hope that their statement spells the beginning of the end for Trump's grotesque gambit to enlist Republican-led state legislatures in facilitating a bloodless coup.

However, there are reasons to remain gravely concerned, especially if, later today, the two Republicans on the Michigan State Board of Canvassers accede to their party's outrageous request for a two-week delay in certification of the state's election results based on minor and routine discrepancies fronting for racist conspiracy theories. To be clear, that move would not by itself deprive Joe Biden of Michigan's electors, much less the Presidency, but it would embolden Trump and his enablers. If you give a mouse a cookie, he's going to ask for a glass of milk. If you give a malignant narcissist a two-week delay, he and his brownshirts are going to try to extort (at least) four more years of his destructive reign.

Accordingly, I think it is premature to judge Trump's scheme to steal the election through GOP-controlled state legislatures dead. It therefore warrants continued legal analysis, even as I fervently hope that what I write here ultimately proves to be of merely theoretical interest.

Friday, November 20, 2020

Women, Animals, and Victim-Blaming

 by Sherry F. Colb

(The following is the text of a talk I gave on Monday on a panel sponsored by the New York City Bar.)

When I was in law school, a brave classmate spoke openly of a marriage in which her husband regularly abused her. I realized as I listened that I had stereotypes of battered women in my mind. I was surprised to hear what she said because she did not seem like the sort of woman who would find herself in an abusive relationship. She was eloquent and strong and extremely intelligent. I looked up to her and admired her as a leader. What could have possessed her to absorb abuse? And what exactly did her husband do to her?

We can recognize this kind of thinking as victim blaming. We find out that a person is enduring cruelty and abuse, and we ask, “Why haven’t you left?” or “Is it really that bad?” instead of assuming that she has her reasons and that it is her abuser rather than she who has some explaining to do. As a good friend of mine said recently, if we blame the victim, then we can pretend that we are safe. It is an understandable human impulse. A colleague of mine died of lung cancer a few years ago. Almost everyone wanted to know whether she smoked. (She did not). But what if she did smoke? Then we could tell ourselves we would be fine because she brought it on herself by smoking. We don’t really believe that she deserved to die because she smoked, but we place distance between her and ourselves by identifying things that she did to increase the odds of her illness.

In the case of my classmate, the reason I think it was “brave” for her to talk about the abuse she suffered is that she was surely conscious of the stereotypes. And I imagine she had internalized the shame that goes along with victim blaming. She probably told herself at times, “I chose to marry him, so maybe it’s my fault. I must deserve it because I haven’t left.” It is risky to reveal something about yourself that people tend to judge. If you doubt that women feel shame after abuse, just watch the makeup tutorials online that let victims know how to conceal their injuries. When a woman says “I just walked into a wall,” it is not only to protect her partner; it may be to protect herself from judgment. How people react will depend a lot on how committed they are to the stereotype, and it is hard to know that in advance.

Thursday, November 19, 2020

Trump's Remaining Coup Options are Daunting — but Scary

by Neil H. Buchanan
 
While he was frantically running around the country at the end of his losing reelection campaign, Donald Trump continually told his audiences that the media were pushing the coronavirus story simply to hurt him.  He predicted that, come November 4, we would stop hearing anything about COVID-19.  It is worth noting, then, that Trump's paranoid sense of victimization was wrong again.  The pandemic is raging, and the press is covering it aggressively, even after he lost.
 
The problem is that Trump and the Republicans are doing their best to push that story aside by making news of the worst sort: attempting to destroy constitutional democracy.  (Trump also is now claiming credit for progress on vaccines, and Donald Trump Jr. has claimed that Pfizer withheld its positive announcement until after the election to hurt his father.  A chip off the old paranoid, self-pitying block.)
 
But is the Trump coup attempt dead in the water, as much of the media discussion assumes?  Of course not.  As I will explain here, his remaining options are long shots, but in some ways that makes them even more worrisome.  At best, the outcome will be a Biden presidency that must constantly fend off attacks on its legitimacy.  At worst, we will have a constitutional crisis over the next two months that could shake (and perhaps demolish) the nation's foundations.  How might that all play out?
 

Wednesday, November 18, 2020

Efficiency? I Do Not Think That Word Means What You Think It Means

by Neil H. Buchanan

I need to take a short break from following Donald Trump's ongoing attempted coup.  This is turning out to be every bit the existential crisis about which I and others have long warned; and even though people are currently (understandably) expressing confidence that Trump will ultimately fail, I still have serious doubts.  But that is for another day (probably tomorrow).  How about a palate cleanser?

As it happens, I have again been thinking about the incoherence of the concept of economic efficiency.  As Professor Dorf announced back in May, a new Buchanan-Dorf article is forthcoming in Cornell Law Review under the title: A Tale of Two Formalisms: How Law and Economics Mirrors Originalism and Textualism.  Because of the long time frames involved in law review publishing, we are only now being asked to respond to the final round of editorial queries for the article.  (Our submitted draft can still be found on SSRN).
 
As Professor Dorf explained, and as I explored in two followup columns (here and here), our article describes the state of play in "originalism and textualism" (O&T) and "law and economics" (L&E), with the real oomph of the piece being our observation that conservative academics in those two fields make opportunistic and arbitrary choices that just so happen to lead to right-wing outcomes nearly every time, even though O&T and L&E should not on their own terms be so predictably parallel.  Worse, adherents of both categories of conservative theory loudly purport to be objective and non-ideological, even as they rely on plainly biased assumptions.  (I would say that the theories are "rigged," but Trump and the Republicans have taken that word away from us, at least for now.)

O&T (as the scandalously dishonest recent Supreme Court confirmation hearings in the Senate reminded us) claims that courts can be constrained in their interpretive efforts by being forced to adhere to the words of documents and their objectively determinable meanings, which supposedly means that judges cannot play fast and loose with statutes and constitutional provisions.  Meanwhile, L&E is based on an economic theory that says that the best approach to all legal and policy questions is to determine what the "efficient" choice would be.

Here, I want to return to the economic efficiency concept and explain why the L&E move (which is simply an adaptation of the framework invented by the group of economists known as neoclassicals) is truly an empty exercise within which anyone can embed their policy preferences.  I do so both to respond to an interesting objection that we have heard and because it turns out that even people like Chief Justice John Roberts understand (perhaps without realizing it) that the efficiency concept is incoherent and manipulable.

Tuesday, November 17, 2020

Religious Liberty as Religious Supremacy: Why Justice Alito's Federalist Society Speech was Paranoid and Inaccurate

 By Eric Segall

Justice Samuel Alito’s partisan speech to the Federalist Society last week caused quite a stir among both the left and the right, with both sides lining up to criticize or applaud the presentation based on their political views. He said many things that perhaps Supreme Court Justices should keep to themselves. But the part of Alito’s remarks that focused on the alleged persecution being heaped on people who object to same-sex marriage on religious grounds, and his overall argument that "religious liberty is in danger of becoming a second class right," raise important issues concerning the separation of church and state (or-non-separation) and suggest Justice Alito has a perverse and counter-factual perspective on the state of religious liberty in America.

People of faith, according to many, have a right to be exempt from laws applicable to the rest of us, if complying with those laws substantially burdens their religious exercise, but secular objectors attending official government meetings (often coercively) are expected to respectfully put up with their discomfort with official prayers or leave the room, chamber, or capitol building. Non-believers have also been told by the Supreme Court to accept religious symbols (usually Christian) on government property. This hypocrisy is unnecessary, triggers culture wars, and shows that religious supremacy, not religious liberty, is Justice Alito's, and the Court's, preferred constitutional value.

Monday, November 16, 2020

Takings and Time

 by Michael C. Dorf

On Friday the Supreme Court granted certiorari in Cedar Point Nursery v. Hasid, a case that pits labor rights against property rights. Given the Court's current personnel, the odds seem pretty clearly stacked in favor of the latter. Here, I'll briefly describe the case but mostly set aside the ideological stakes. Instead, I'll focus on a mathematical issue that the case presents and that arises in other contexts as well.

Friday, November 13, 2020

Justice Alito's Sense of Grievance Distorts His Views of Free Speech

 by Michael C. Dorf

In remarks at the Federalist Society national convention yesterday, Justice Samuel Alito proved that even if the clown-tyrant currently occupying the White House fails in his attempted putsch, right-wing grievance politics will remain with us for quite some time. As Justice Alito made clear during last week's oral argument in Fulton v. Philadelphia, he has not gotten over Obergefell v. Hodges, the 2015 case recognizing a constitutional right to same-sex marriage. Justice Alito repeated his complaint again for his FedSoc audience.

Much of the coverage of Justice Alito's remarks has focused on whether they were inappropriately political or partisan. I want to put that issue aside to focus instead on how Justice Alito's sense of aggrieved entitlement has distorted his legal analysis on the issue of free speech.

Thursday, November 12, 2020

What I Misunderstood About People Who Might Vote for Trump

by Neil H. Buchanan
 
This past Saturday and Sunday, when it briefly appeared that President-Elect Biden and Vice President-Elect Harris were going to be widely and quickly accepted as the legitimate victors in the election, I considered writing a column this week in which I would eat a considerable amount of crow -- and because I am a vegan, that would have been an especially repellent prospect.
 
I have, after all, been loudly and consistently saying for years that Donald Trump would bring the end of the rule of law in America, that he would never leave office, and that we might even be a "dead democracy walking."  Saturday's celebrations seemed to have proven me wrong.  Delightfully, deliciously, deliriously wrong, but wrong.  Would that it were so.

My new Verdict column (to be published tomorrow) instead suggests that the Republicans are very likely now in the process of going through the mental gymnastics needed to support Trump's outlandish claim to being the rightful winner of the election.  Just as Republicans have been horrified, then resigned, then willing to ignore things like the "Access Hollywood" tape, the Charlottesville equivalence, the Ukraine extortion attempt, and on and on, I argue that the current cover story about Trump needing time to accept reality is instead time being spent getting Republicans to adjust to his alternative reality.

I do admit that there are still plenty of barriers to preventing the coup, but I continue to have much less confidence than others that those barriers will hold.  And even if the legal barriers are not breached, Trump still has the military (which he is in the process of corrupting) and his "Second Amendment people" on speed dial.

All of that is plenty scary, but I will use this column to discuss the election from a much more mundane perspective.  That is, I want to discuss votes as if they actually matter.  Yes, it is prosaic of me to continue to think of elections as the core of democracy, but bear with me.  I want to discuss why Trump received so many more votes than I thought he would.  It is an important question, and the logical mistake that I have been making until now is especially fascinating.

Wednesday, November 11, 2020

The Deadest of Zombie Ideas: Americans Prefer Conservative Policies

by Neil H. Buchanan

The transition to the Biden Administration is already looking less than certain, with Republicans once again enabling Donald Trump's autocratic instincts by refusing to acknowledge the clear victory by Joe Biden and Kamala Harris in this year's election.  That is quite worrying, as I will discuss in my Verdict column on Friday.  For now, however, let us imagine that Donald Trump will actually be evicted from the White House and that a new political reality will begin on January 20, 2021.

As appealing as that idea is, the fact is that Republicans and weak-kneed Democrats will continue to work in lockstep -- not conspiratorially, but simply by following their respective political instincts in the same direction -- to prevent progress on the actual policy issues facing the country and the world.

Yes, it will matter a lot whether the Democrats can somehow win both Georgia runoff elections for U.S. Senators, which would give them the bare minimum to control the Senate agenda and keep Mitch McConnell's hands off of the appointment process for cabinet members and federal judges.  But even if the Democrats had ended up with 51 or 52 seats, the Senate was going to be a very difficult place, because too many of their members -- not only West Virginia's conservative Democrat Joe Manchin, but others as well -- buy into the wholly mistaken idea that America's is fundamentally a conservative polity.

Where does the myth of America's DNA-level conservatism come from, especially given that it seems so easy to kill with overwhelming evidence?  Why do so many people continue to reanimate this zombie?

Tuesday, November 10, 2020

How Will the SCOTUS Reject the Challenge to Obamacare?

 by Michael C. Dorf

With the caveat that one can never say with 100% confidence how Justices will rule on a case based on their questions and comments at oral argument, I count at least five votes to reject the argument by Texas and the Trump administration for invalidating the entire Affordable Care Act. Chief Justice Roberts and Justice Kavanaugh very clearly signaled that they disagree with the claim that the individual mandate cannot be severed from the balance of the Act, while Justices Breyer, Sotomayor, and Kagan seemed inclined to rule against the challengers on multiple grounds. In addition, Justices Thomas and Barrett were skeptical of some of the arguments for standing. Accordingly, I'm going to assume for purposes of this essay that the challenge will be rejected and game out how the opinion(s) might be written.

Spoiler Alert: I predict the case will be decided on standing grounds and that the Chief will write the opinion.

Monday, November 09, 2020

Religion vs. Gay Rights or Making Homophobia Great Again

 by Sherry F. Colb

Having finally stopped hitting "refresh" on the electoral count on Friday, I decided to go out for a walk with my dog Blue and listen to the arguments in Fulton v. Philadelphia  The case involves a Catholic organization that contracts with the government to help place children in foster care, and the question is whether the City may refuse to renew its contract with that organization because the latter refuses to  consider same-sex couples for certification as potential foster families. In other words, though several Justices seemed unwilling to frame it in this way, the Catholic organization discriminates against gay men and lesbians applying to become foster parents.

In an argument that would have been amusing if it were not so appalling, we kept hearing about how no gay couple (or possibly only one gay couple) has applied to the Catholic organization to be certified as foster parents. I do not recall hearing anyone say it, so I will: of course a gay couple would not apply to an organization that refuses to consider gay couples. I imagine few African American students applied to matriculate at Stonewall Jackson Academy. I would think that if no person in an excluded category even tries to use the services of an institution after the institution has advertised its unwillingness to consider that category, the reasonable person would conclude that the place is plainly guilty of discrimination. Several Justices, however, seemed to think that the absence of applicants indicates that any belief that the place discriminates is entirely speculative. If you scare away all of the ____'s, then nothing bad has happened yet. Perhaps we could introduce the Justices to the First Amendment concept of "chilling effect." It's not just for speech.

Saturday, November 07, 2020

Shelter From the Storm 2020 Election Edition

 By Eric Segall

Twas in another election, one of toil and blood; When Trumpism was a sickness and the road was full of mud; He came from a gold plated bathroom, a creature void of form;
He spilled his bile all over us; And we entered into the storm

Not a word he spoke was gentle, there was so much risk involved; Everything up to that point had been left unresolved; We tried imagining a place where it's always safe and warm, but 2016 was terrible, and we entered into the storm

I was burned out from exhaustion, disgusted by the man; he divided us like no other, all across the land; He picked Pence as his VP, which was equally bad form, and back in 2016, we entered into the storm

Trump put a wall between us, something had been lost; we took too much for granted, we got our signals crossed; we thought he’d never win, but then we all were torn; and then in 2016 we entered into the storm

His judges walk on hard nails and Fed Soc picked them all; Trump's bluster was all show while his base heard his call; McGhan did the dirty work and blew his hateful horn; and in 2016 we entered into the storm

On many a private golf course, he avoided doing his job, while bargaining for his hotels, he remained a lethal slob; he took away our dignity and repaid us all with scorn, and in 2016 we entered into the storm

In cities across our country, Trump lied about our woes, He didn’t care for our salvation and gave us a lethal dose; we offered up our innocence but got repaid with scorn, And in 2016, we entered into the storm

But then we turned around and Biden was standin' there; With Kamala right behind him, and silver in his hair, They came upon us so gracefully and took Trump’s crown of thorns; Come in, they said so warmly, we'll give you shelter from the storm

Now I hear delight across the land, people no longer so forelorn; music playing by the E Street Band, and a new era is born; we danced in the streets to celebrate, the hate at last all gone, Come in, they said so gratefully, we'll give ya shelter from the storm

Now I'm livin' in a different country, it will be a different time; With Joe and Kamala in power, we’ll walk a different line; I no longer worry for the children who in time will soon will be born, Come in they said so gratefully, we'll give ya shelter from the storm;

Now we must all come together, a country for one and all, when we unite as one, we can surely avoid the fall, Joe and Kamala understand we must love one another and that's fine form; Come in they said so gratefully, we will give ya shelter from the storm.

Friday, November 06, 2020

What's Wrong With The Electoral College And What Can Be Done About It?

 by Michael C. Dorf

No, this is not simply a blog post arguing that the U.S. would be a better, more democratic polity if we elected our President via a national popular vote. I believe that. I support a constitutional amendment to make that change. Failing that, I support the National Popular Vote interstate compact as a means of circumventing the Electoral College (EC) as a second-best option for getting there. But I doubt that either change -- constitutional amendment or interstate compact -- will occur unless and until a Republican Presidential candidate clearly wins the popular vote but either loses or nearly loses the EC vote, because only then could there be enough of the state legislative support necessary for the change by either method.

However, that's not what I want to say today. Nor do I simply want to complain that in 2000 and 2016 the clear winner of the popular vote lost the EC and that, pending the outcome of recounts, litigation, and shenanigans, there's still a chance that could happen again this year. The consequences have already been catastrophic because of the substantive results of the 2000 and 2016 Presidential elections. The catastrophe that is Trump needs no elaboration right now. And while George W. Bush was a normal President when measured against the yardstick of Trump, let's not forget that W was a bad President measured against non-psychopaths: he ignored intelligence that might have prevented the 9/11 attacks, launched an unnecessary war in Iraq that caused enormous suffering and spawned what became ISIS, and abandoned Americans to their fate during Hurricane Katrina.

However, I'm not going to lay the blame for disastrous policy and, in Trump's case, the broad sabotaging of our democracy as well, on the EC. Responsibility for the last four years rests with the nearly half of American voters who either supported Trump for the reasons that decent people find him intolerable or were so in favor of low taxes for the wealthy, deregulation, guns, and/or socially conservative policies on civil rights and abortion that they were willing to overlook Trump's manifest flaws. (I blame my fellow Americans much less for choosing Bush in 2000, when he ran as a "compassionate conservative.") Were Trumpism confined to the fringes, then the fairly small boost the EC gives to it would not make much of a difference.

So what's actually wrong with the EC?

Thursday, November 05, 2020

The Winner's Curse, Supreme Court Edition: Do Roberts and Gorsuch Want to Engage in Self-Neutering?

by Neil H. Buchanan
 
Although politicians and the media are understandably focused on the ongoing counting of votes in various key states, I continue to believe that nothing is going to stop the coup that Donald Trump has been advertising for years.  He has already filed several of the lawsuits that will work their way up to his stacked Supreme Court, and in the end, it will not have mattered whether Biden won by a little or a lot.  It was always going to end up in the hands of the Supremes.

After all, even if Trump had lost Texas, Florida, and Ohio, there are fiercely pro-Trump Republican majorities running those state legislatures, supplemented by Republican governors.  Those states could have decided (and Arizona, and possibly Georgia, might yet choose) simply to award their electoral votes to Trump, no matter who won the votes in their states.
 
In addition, the key swing states of Wisconsin, Michigan, and Pennsylvania are all poised to see their legislatures attempt to validate the legislatures-only theory (which Professor Dorf again ably debunked earlier this week), under which their Republican-dominated state legislative branches ignore their Democratic governors and simply announce that they have the power to appoint Trump's slates of electors -- again, the voters be damned.

Any or all of those moves will land in the Supreme Court, and they are much more bold than the current attempts to stop vote counts prematurely.  Indeed, based on where things stand now, it appears that the courts will be essentially powerless to stop Biden from seeming to have amassed at least 270 electoral votes.  I say that this "appears" to be the case because the Court could yet surprise us with a rule that says that partial counts on Election Day are the definitive outcome; but in any case, we are already in the process of litigating everything.

Rather than predict what this Supreme Court will do, at least in the usual "Supreme Court watcher" mode that so many law professors love, here I want to ask a different question: Do any of the six Republican appointees to the Court want their roles to matter in the future, or are they willing to expend all of their institutional importance now in the service of something that they will not be able to undo?  That is, are at least some Supreme Court justices interested in continuing to be relevant?

Wednesday, November 04, 2020

Republicans Must Stop Their War on Education

by Neil H. Buchanan

Wishing to avoid the insta-pundit analyses that saturate Election Night coverage, and wanting to delay knowing the partial outcomes of the elections (which is all anyone can know at this point), I have succeeded in isolating myself entirely from the news for the past 24 hours.  This column very much addresses partisan differences, as I will describe presently, but I am choosing to write without knowing where things now stand politically.  (There might or might not be a reference to Schrodinger's cat here -- indeed, this sentence might or might not be a meta-reference thereto -- but because I know nothing about physics, I will leave it at that.)

In what amounted to my closing argument about the election, I published two related Verdict columns on Monday and yesterday.  The first considers what Republicans' believe is their strongest case to the voters (the economy, if you can believe it), while the second considers by far their weakest (the pandemic).  Here, I want to discuss how the Republicans' failures in both areas are undermining one of America's most important assets: higher education.
 
Politicians, and certainly Donald Trump, spend a great deal of time pandering to workers in particular lines of business.  Mitch McConnell and his Republican colleagues invented the supposed War on Coal, which blames President Obama's policies for the loss of jobs in what was already a small and economically doomed sector.  Similarly, I grew up in the upper Midwest, where the former dominance of automobile production (and all of its ancillary businesses, such as auto glass, tires, and so on) elevates a tiny number of workers into a mythic status.

This means that we still think of certain cities as attached to industries that are simply not significant anymore.  Pittsburgh still has the Steelers as an NFL football team, but it has moved on from Big Steel in a big way.  Kodak dominated Rochester NY for decades, but at this point, the biotech sector is what drives that city's revival after the shrinkage not only of Kodak but of Xerox as well.  Politicians want to play to those biases, but the real economic action in this country is in what I will reluctantly call "the business of education."  I will return to that particular word choice soon, but first, it is important to understand why higher education is so important to the United States.

Tuesday, November 03, 2020

The Court Should Reject Religious Supremacy in Philadelphia but it Won't

 By Eric Segall

The election is today (and perhaps goes on longer), but also tomorrow the Court will hear arguments in a major church/state case that could have far-reaching implications for our country. 

A major American city, Philadelphia, decided to give out grants to public interest organizations to help place foster children in permanent homes. The city does not allow any group that wants to participate but rather insists in the contract, which no one is required to sign unless they want the city's grant money, that the grantee will not discriminate on the basis of several factors, including sexual orientation. 

A church-affiliated organization, Catholic Social Services ("CSS"), took the grant money but refused to agree to the non-discrimination pledge because it feels children should only be placed with married  parents, and CSS does not consider legally married gay couples-well married. . The City then terminated the contract, and the religious group says that termination is unlawful discrimination against religion. CSS wants a court order requiring Philadelphia to give the group grant money despite its refusal to agree not to discriminate against gay parents. Two lower courts correctly ruled for Philadelphia, and the case will be argued tomorrow in the Supreme Court (by telephone). The decision is foreordained as the Justices will almost certainly, and wrongly, rule against the City. 

This is absolute madness, and the decision will inevitably reflect this Court's wholly made up version of religious supremacy and consistent and obstinate interference with the decisions of state and local officials without any persuasive basis in constitutional text or history.

Monday, November 02, 2020

Non-Originalism and Constitutional Arguments About Changing the Supreme Court's Size

By Daniel Epps

Friday, Todd Henderson published a piece in Newsweek arguing that "there is a fatal flaw in Democrats' plan to 'pack' the Court if they win—it is plainly unconstitutional." The piece received a less-than-enthusiastic reception on Twitter from me, Orin Kerr, and others, in part due to the fact that its author himself did not seem to be making the arguments in good faith (more on that in a moment). Will Baude, however, shortly thereafter responded with a thoughtful blog post in which he noted that Henderson's piece has "already attracted a ton of criticism" and arguing that the "criticism deserves more scrutiny." 

In this post, I'm going to respond to Will's post. I have three goals. First, I'll try to explain why there haven't been well-developed arguments about the constitutionality of Court-packing/expansion, and why Henderson's piece wasn't likely to prompt them. Second, I'll offer some larger thoughts about how academics should respond to arguments like Henderson's, prompted by Will's post. Third, I'll offer some tentative arguments about the constitutionality of changing the Court's size.

What's Wrong with the Argument that State Legislatures Have Exclusive Authority For Everything Election-Related

 by Michael C. Dorf

If all goes well tomorrow, neither the Supreme Court nor any other court will have occasion to resolve post-election disputes because Joe Biden and down-ballot Democrats in tight races will win by a sufficiently decisive margin to render any such legal challenge futile. Yet if the last four years have taught us anything, it's that only a fool counts on all going well. Some combination of polling error and voter suppression could produce post-election litigation after all. Or, as Prof. Buchanan has repeatedly warned (including on Friday of last week), Republican state legislators in states Trump loses could nonetheless disenfranchise their states' voters by purporting to assign their Presidential electors directly. 

If post-election litigation ensues, its outcome could turn on a principle most clearly articulated thus far by Justice Gorsuch, joined by Justice Kavanaugh, in last week's Wisconsin case. I quoted the language in my "SCOTUS Kremlinology" post last week, but it warrants quoting again:

The Constitution provides that state legislatures—not federal judges, not state judges, not state governors, not other state officials—bear primary responsibility for setting election rules.

The part of that quote outside the em-dash is right. The Constitution does give state legislatures primary responsibility for setting rules for federal elections. Article I, Sec. 4 provides: "The times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof; but the Congress may at any time by law make or alter such regulations, except as to the places of choosing Senators." And Article II, Sec. 1 provides: "Each state shall appoint, in such manner as the Legislature thereof may direct, a number of electors, equal to the whole number of Senators and Representatives to which the State may be entitled in the Congress . . . ." So far so good.

However, the part of Justice Gorsuch's statement inside the em-dash is highly misleading. It's true that federal judges, state judges, state governors, and other state officials do not "bear primary responsibility for setting election rules" (emphasis added). Yet Justice Gorsuch and the other Republican appointees who have endorsed this approach have been voting in election cases as though it follows that federal judges, state judges, state governors, and other state officials bear no responsibility for implementing, interpreting, and/or limiting federal election rules. And that broader view is mistaken for reasons expressed by Profs Tribe and Mazie in the Boston Globe yesterday and in two Verdict columns last week--one by Prof. Buchanan and another by Dean Amar.

I commend those essays to readers. In the balance of this post, I'm going to lay out a class of examples that further illustrates why the legislature-alone theory is wrong.

Friday, October 30, 2020

Why Don't Republicans Simply Admit Now that They'll Happily Carry Out Trump's Coup?

by Neil H. Buchanan

In 2016, the Republicans in the U.S. Senate bluntly told everyone that they were not going to take up Barack Obama's nomination of Merrick Garland to the Supreme Court.  Everyone was shocked and did not truly believe they would go through with it, but it happened.
 
In late 2017, congressional Republicans shed all pretense that they were going to follow normal (or even minimally rational) procedures in passing their punitively regressive and expensive tax bill, yet even avowed proceduralists like John McCain and NeverTrump fiscal faux-hawks like Jeff Flake happily went along with the multi-trillion dollar upward redistributive scheme.

At multiple times in the past two decades, Republicans have announced that they were blocking even the most minimal gun control legislation, even when ninety percent of the public supported it.
 
In early 2020, Senate Republicans announced that they were not going to take their constitutional duty seriously by holding a real trial after Donald Trump was impeached.  Mitch McConnell even went on TV and told everyone that he and his colleagues were coordinating the sham trial with the White House.  When John Bolton made himself available to testify, Republicans simply said that they were not interested in hearing from him.

Last month, Senate Republicans announced that they were going to fill the late Justice Ruth Bader Ginsburg's seat, laughing off the idea that they would take seriously their own statements about filling Supreme Court seats in an election year.  They could not have been more clear in saying: We can get away with it, so we will do it!  And then they did.

The point is that Republicans are not shy about simply saying what they are going to do, no matter how unpopular it is.  Now, people are wondering whether Republicans are going to steal the election for Trump.  And although Trump himself has stated clearly that replacing Justice Ginsburg was all about stealing the election, others are acting as if this is not a done deal.

Why bother with the pretense?  A few thoughts.

Wednesday, October 28, 2020

SCOTUS Election Law Kremlinology -- Or How Brett Kavanaugh Might Yet Save the Republic

 by Michael C. Dorf

Within the last week, the Supreme Court has ruled on two election-related stay applications from Pennsylvania, one from Alabama, one from Wisconsin, and one from North Carolina. In three of the five rulings, the position favored by Democrats prevailed, with the result that, for now, the deadline for counting absentee ballots is modestly extended in Pennsylvania and North Carolina but not Wisconsin. The Alabama case (in which Democrats lost) involved curbside voting, not deadlines.

Superficially that pattern is good news for Democrats. So far as the Presidential race is concerned, counting every possible vote in Wisconsin is less crucial than in Pennsylvania and North Carolina, given that Joe Biden has a wider polling lead in Wisconsin than in Pennsylvania or North Carolina. Meanwhile, Biden is not going to win Alabama under any circumstances, and while Doug Jones cannot afford to lose any votes, he's likely to lose his Senate seat regardless.

But even the good part of the good news is not so good for Democrats. Let's start with Pennsylvania. Last week's Democratic "victory" in the Pennsylvania case was a 4-4 split in the Supreme Court, leaving the Pennsylvania Supreme Court opinion standing. Justice Barrett did not participate in the follow-up Pennsylvania case decided today, but not because she recused herself due to the appearance of impropriety of casting a vote in favor of the President and party that just catapulted her to the Supreme Court in record time; she might still recuse in election cases, but as of now it appears only that she didn't participate because she didn't have time to get up to speed. Meanwhile, in a statement in today's Pennsylvania case, Justice Alito, joined by Justices Thomas and Gorsuch, provided Pennsylvania Republicans with a roadmap for getting back to the Supreme Court after the election, by segregating the mailed-in ballots that arrive in the 69 extra hours the state court allotted.

But wait! That's only three conservative Justices. Where was Justice Kavanaugh in the second iteration of the Pennsylvania case? I'll address that question momentarily, along with the parallel mystery of where he might have been in the North Carolina case, where he also was not recorded as joining the three most conservative justices. And unlike the Pennsylvania case, in the three North Carolina case dissenters (Thomas, Alito, and Gorsuch) did not suggest they would rule for the Republicans after the election. Has Justice Kavanaugh--who wrote an almost Trumpian concurrence in the Wisconsin case just two days ago--suddenly gone soft?

Let's read the tea leaves.

Is There Time for a Switch in Time?

 by Michael C. Dorf

Joe Biden spent part of yesterday campaigning in Warm Springs, Georgia, which had been the site of a retreat owned by FDR. The NY Times described Biden's speech there as "a let-us-come-together appeal that evoked the sort of common purpose that sustained the country during the Great Depression and World War II and that Mr. Biden said was needed to overcome the coronavirus." Fair enough. But for many people who have been following the news from and about the Supreme Court, reminders of FDR are more likely to evoke his Court-packing plan than his unifying rhetoric.

Biden himself, however, pretty clearly did not intend that message. As I explain in my new Verdict column, the bipartisan commission Biden hopes to create to study potential court reforms is highly unlikely to recommend Court expansion. We can see that from both the way Biden himself has talked about it--"not a fan"--and the nature of the commission--bipartisan and thus extraordinarily unlikely to define the problem the way we Democrats see it: a minority of the country votes for Republicans, who nonetheless control key organs of the federal government because of the unrepresentativeness of the Senate and the Electoral College; they use those organs to block action by Democrats and pack the courts with judges and justices who abet their voter-suppression efforts and partisan gerrymandering to ensure continuing minority rule; lather; rinse; repeat.

To be sure, it is possible to imagine some reforms--especially term limits--garnering bipartisan support. In my column, I urge that any reform should be backed with a substantial and credible threat that if the Court strikes it down, Court expansion will follow automatically. However, I am not optimistic that a recommendation with such teeth will be forthcoming from the commission Biden envisions.

Nonetheless, Biden's bipartisan commission is not necessarily the only word. Although Biden said he will charge his commission with reporting back within 180 days, should Democrats retake the Senate (and thus have any chance of changing the cloture rule and then enacting judicial reform legislation), expect one or more members of Congress to introduce a court reform bill before the 180 days are up. Suppose that both houses of Congress pass a bill expanding the Court's size, stripping it of some jurisdiction, or demoting Justices Thomas, Alito, Kavanaugh, and Barrett to appeals court judges (which might be constitutional, as I discuss in the column). The political pressure on a President Biden to sign the bill before his commission reports would be substantial.

And that leads me to today's question: Assuming, as I discussed last week, that there is something the Roberts Court could do to avoid such a fate, how much time is available for a switch in time?

Tuesday, October 27, 2020

The Republicans’ Misplay of the Supreme Court Fight

by Neil H. Buchanan

Before I get to the discussion advertised in the title of this column, let me start with a seemingly unrelated question: When you receive a refund on your taxes, do you think that you paid zero taxes in that year?
 
That is possible, of course, but the more likely case is that you (like millions of Americans) have set up your payroll arrangements so that you end up paying more in taxes during the year than you will owe, giving you a nice little lump of sugar when you fill out your taxes in April.  Or if (like me) you want to withhold fewer dollars during the year and then pay a nominal sum with your tax return, you can do that, too.  In neither case, however, is the amount you owed in taxes in a given year knowable from the refund/owed lines of your tax return.

Donald Trump, however, thinks otherwise.  At least based on what he said at the most recent non-debate, he believes that the report in The New York Times showing that he paid only $750 in taxes in 2016 and 2017 is misleading, because he "prepaid" his taxes in the relevant years.  But line 63 on the relevant document for the most recent year (2017's Form 1040) reads: "This is your total tax."  Then, you enter "payments," including "Federal income tax withheld" (line 64) and "2017 estimated tax payments" (line 65).  Adding in any tax credits, you then compute "total payments" (line 74) and, if those are less than your total tax, the difference is the "amount you owe" (line 78).

In all events, the "amount you owe" (when you fill out your tax forms) is definitely NOT the same thing as "your total tax."  Even so, an article on the CNBC website quotes some tool saying that Trump must have meant that he prepaid millions of dollars in taxes and then only owed net $750.00 at the end of the year.  I have not always had great things to say about New York Times reporters, but there is no way that they made that mistake when they published their blockbuster report regarding Trump's taxes.  Again, this is a mistake that no one in their right mind would make: "Oh, I only owed $750 when I sent in my tax forms, so that is how much I paid in taxes last year."

Other than simply setting the record straight on that topic, I also raise this issue because I want to distinguish between purely idiotic statements and bad strategic choices.  The Republicans' recent handling of the Supreme Court vacancy included a lot of idiotic statements, but it was in a fundamental way a truly bad strategic choice.

Monday, October 26, 2020

The New Obamacare Case is So Weak Even ACA Warriors Think it Has No Merit

 By Eric Segall

Once upon a time in a small corner of Texas there was a federal trial judge named Reed O’Connor who really, truly hated Barrack Obama and all other things liberal. He ruled several Obama-era policies regarding transgender students unconstitutional, he struck down a federal law prohibiting the interstate transportation of handguns, and he overruled an Obama administration rule barring health care providers from discriminating based on gender identity. Those conservative rulings all came before his tour de force front-page potentially country-changing decision in the aptly named case California v. Texas to invalidate the entire Affordable Care Act (Obamacare) potentially disrupting our entire health insurance and health care systems.

Why would Judge O’Connor do such a drastic thing apart from his obvious desire to both destroy all things Obama and to be elevated to the Fifth Circuit Court of Appeals, otherwise known as the anti-Obama Circuit? The story begins in 2017, when Congress passed an amendment to the ACA eliminating the mandate/tax/penalty (otherwise known as the John Roberts switcheroo) for people who refuse to buy health insurance. At the time, the House was Republican, the Senate was Republican, and the President was Republican. Had they been willing to "go nuclear" to change the Senate rules governing what bills need a supermajority, they could have repealed the entire law, but instead they made one part of the law meaningless and KEPT THE REST (needed all caps because, well you will see).

Friday, October 23, 2020

The Worst News from the Final Non-Debate: It Is Being Treated As a Success

by Neil H. Buchanan

Last night, Joe Biden and Donald Trump appeared in what would have been their third and final joint TV event, in what is still laughably called a debate.  With the world having been spared the second such event, I had hoped that this one would also be canceled.  We were not so lucky.
 
For the sake of my mental health, I did not watch the broadcast.  As I explained after the Mike Pence smarm-fest (better known as the Vice Presidential debate) two weeks ago:
"[T]he only way that I can consume an event like last night's joint press conference with Pence and Senator Kamala Harris is by reading news coverage and watching various talk shows (where even exposure to 15-second clips threatens to send me into convulsions).

"Given that none of these so-called debates are actually debates, I no longer feel in any way honor-bound to treat them seriously ... .  The only thing that matters is how the punditocracy scores them, and even that matters only a tiny bit."
Having spent the last few hours watching and reading the chatterers' reactions to last night's unnecessary distraction, it is safe to conclude that it changed nothing.  Trump lied repeatedly, even as some of his lies were exposed in real time by Biden.  Fact-checkers afterward pored over all of Trump's other lies.  Pro-Trump columnists dutifully wrote columns claiming that he had accomplished his goals.  (Oddly, however, the pre-event claim that Trump would try to be funny and likable apparently went by the wayside.)  Life continues in its depressing way in coronavirus-wracked America.
 
It appears, therefore, that last night was not a repeat of the "hot mess, inside a dumpster fire, inside a train wreck" that was the first non-debate (in CNN's Jake Tapper's memorable phrasing).  Apparently, there was even some substantive discussion of issues, sort of.  Why, then, am I even more depressed about this non-debate than I have been about any of the others (this year, or in any previous year)?

Thursday, October 22, 2020

What Was Wrong With Jeffrey Toobin's Conduct?

 by Michael C. Dorf

In our public life we face multiple current and looming catastrophes: a surging global pandemic; resulting economic devastation; a grotesquely hypocritical rush to fill a Supreme Court vacancy; devastating wildfires and other climate-change-worsened natural disasters; and a Presidential election in which the incumbent has repeatedly indicated his intention to reject the outcome and deploy political violence to remain in power. It can be overwhelming.

Thus, as a service to my readers, today I offer a distraction in the form of analysis of a trivial matter--the suspension of New Yorker writer and CNN analyst Jeffrey Toobin after he was seen masturbating during a Zoom-based meeting in which various figures were gaming out possible election scenarios. I haven't kept close count, but this is at least the second sex-related scandal involving Toobin. He also made news a little over a decade ago when he unsuccessfully resisted the claim that he had fathered a child with a younger lawyer with whom he had a long extramarital affair.

Without meaning to minimize the harm that Toobin has done to others as a result of his apparent unwillingness to control his sexual appetites, we might think that the consequences he suffers should be restricted to his personal life. Ah, but some readers will object, while infidelity may be a private (albeit serious) wrong, visibly masturbating in the workplace--which, according to some versions of the story, is what Toobin did last week--is not just gross but a violation of workplace norms. And described at that level of generality, it is.

Yet surely the fact that Toobin exposed himself by accident and while over Zoom should matter, shouldn't it? Let's consider a few variations on Toobin's conduct.

Wednesday, October 21, 2020

The Rape Defense

by Sherry F. Colb

In my Verdict column this week, I continue a discussion I began two weeks ago of why people so frequently treat charges of acquaintance rape as “he said/she said” cases. I challenge this characterization for the obvious reason that defendants have every incentive to say “I’m innocent,” whether they are or not, while accusers have no similar systematic incentives to level accusations independent of their truth. Stated differently, what “he said” is inherently low in credibility, and it is not obvious why we would similarly demote what “she said” when we would not do so in cases of stranger-on-stranger crimes (including rape), even when there are just two witnesses, “he” and “she.” I suggest that the explanation for this puzzle may be a function of the stereotypical stories we all learn about relationships between men and women. All of us have heard that “hell hath no fury like a woman scorned.” Because no one wants to be rejected, we assume that the woman who accuses an acquaintance of rape may be enacting her revenge against him for rejecting her. When the accused expressly states that this is what happened, that they had consensual sex but he just wasn’t that interested afterwards, it all sounds plausible. Acquittal becomes a foregone conclusion.

Tuesday, October 20, 2020

There Will Be (More) Blood

by Neil H. Buchanan
 
Weirdly, Donald Trump has recently altered his stream-of-consciousness speeches at his rallies to include musings about the possibility of losing the 2020 election.  He has even talked about leaving the country, which has provided no end of delight to late-night comedians and pundits.  But does this mean that he is actually preparing for the possibility of losing and -- gasp! -- admitting that he has lost, followed by a peaceful exit from the White House?
 
Would that it were so, but we need to remember that we are talking about a person with an incredibly short attention span who leaves not even the most fleeting thought unspoken.  That he has apparently occasionally considered that he might lose the election tells the world nothing about what he will do if (when?) the time comes.  He has put in all kinds of spadework to allow his claims of voter fraud to take root and ultimately blossom, and his legal team has already spent ungodly amounts of time trying to suppress votes in Texas, Pennsylvania, and elsewhere.  Trump's tossed off musings about losing mean nothing.

Most importantly, the biggest story continues to be that Trump simply cannot stop encouraging his most extreme supporters to be ready to support him with violence.  Blood has already been shed because of Trump this year.  Shockingly but not at all shockingly, he seems to want more blood to flow.

Monday, October 19, 2020

Switch in Time 2: Featuring John Roberts in Place of Owen Roberts

 by Michael C. Dorf

A recent Twitter thread by my colleague James Grimmelmann begins: "The current discussion about whether Democrats should expand the size of the Supreme Court if they control the 117th Congress is an important one. But it overlooks something equally important." Prof Grimmelmann then goes on to catalogue some of the many ways in which a Democratic Congress could reshape the law in a great many areas, including voting rights, qualified immunity, antitrust, court access, and much more.

Some respondents pushed back, observing that a very conservative SCOTUS could and likely would limit much of what a Democratic Congress and President accomplished legislatively through a combination of constitutional limits and statutory interpretation. I think that's a genuine worry, although that hardly means that a Democratic Congress and President shouldn't pursue an aggressive substantive agenda.

Here I want to speculate a bit about how the prospects for Court expansion legislation might interact with an aggressive substantive agenda and the Supreme Court's own decisions.

Saturday, October 17, 2020

Judge Barrett's Confirmation Hearing Redoux and Originalism's Folly

By Eric Segall

Senator Smarty Pants (SSP): Judge Barrett, would you please explain your judicial philosophy to us?

Judge Amy Coney Barrett (ACB): Sure, I'd love to. Judges should interpret the text according to its original public meaning.

SSP: Okay, so let’s talk about the original public meaning of text of the 14th Amendment. Do you know what the Amendment says?

ACB: I’m sorry I can’t answer that.

SSP: How about I give you my pocket Constitution so you can read it?

ACB: I was just playing with you. I know what it says.

SSP: Good one! Okay, so whether we are talking about the equal protection clause or the privileges or immunities clause, do you think the 14th Amendment provides equal rights to women.

ACB: Now that one I really can’t answer.

Friday, October 16, 2020

Why Didn't The Nuclear Option End Confirmation Hearing Stonewalling?

 by Michael C. Dorf

What did we learn from the confirmation hearing for soon-to-be-Justice Amy Coney Barrett? Mostly, that she's smart, knowledgeable, unflappable, and extremely disciplined at not answering questions. In that regard, she does not differ much from any SCOTUS nominee of either party in the last three decades (with the exceptions of Justices Thomas and Kavanaugh in phase two of their respective hearings, when they were respectively flappable and very flappable). All of the current Justices had the requisite professional qualifications when appointed. And although one can argue about whether Barrett took the non-answering to new levels, we should keep in mind then-Professor Elena Kagan's observations about non-answering over a quarter century ago. Writing in the University of Chicago Law Review, Kagan said of nominee Ruth Bader Ginsburg:

Justice Ginsburg's favored technique took the form of a pincer movement. When asked a specific question on a constitutional issue, Ginsburg replied . . . that an answer might forecast a vote and thus contravene the norm of judicial impartiality. Said Ginsburg: “I think when you ask me about specific cases, I have to say that I am not going to give an advisory opinion on any specific scenario, because . . . that scenario might come before me.” But when asked a more general question, Ginsburg replied that a judge could deal in specifics only; abstractions, even hypotheticals, took the good judge beyond her calling. Again said Ginsburg: “I prefer not to . . . talk in grand terms about principles that have to be applied in concrete cases. I like to reason from the specific case.”

In this respect, if perhaps not others, Judge Barrett followed in the footsteps of the Justice whose seat she will fill. Barrett proved herself the ultimate lobster as she repeatedly executed the Ginsburg pincer movement.

And yet, we might wonder why. Following the GOP-controlled Senate's exercise of the "nuclear option" for SCOTUS nominees (which followed its exercise by the Democratic-controlled Senate for lower court and executive-branch nominees), a mere majority vote suffices to confirm a Justice. As I'll explain, that shift--which occurred for Justice Gorsuch--ought to have ended the need for evasiveness. The puzzle is why the practice persists.

Thursday, October 15, 2020

The Winner's Curse in an Autocratic Power Grab

by Neil H. Buchanan

What would it be like to be on the winning side of a Constitution-shattering political putsch?  Winning is great, right?  Certainly, one would think that -- at least for those who have no principles other than grabbing political power by any means necessary -- life would be pretty good on the other side of a coup d'etat.  You enjoy the spoils, and the other guys eat dirt.

In my new Verdict column today, I start to address that question by looking at the highest-level Republican enablers of Donald Trump.  In fact, I was looking at only a subset of that group, limiting my analysis to those who imagine that they will be president someday.  That means that, for the purposes of that column, I was not looking at Mitch McConnell, Bill Barr, or any of the others who are abetting Trump's push toward a dictatorship.

There are, at all times, governors and U.S. Senators (and occasional House members) who picture themselves as a future president.  Some, like Rick Santorum -- who was defeated in one of the largest ever blowouts of an incumbent U.S. Senator running for reelection -- were once sorta-kinda viable, but then they become walking punchlines by hanging on for far too long.  Before they get to that pitiable status (and perhaps even after), however, all of these people spend their days believing it when people around them say that they will be in the Oval Office someday.

As I will explain in a moment, those people are especially misguided in joining the Trump parade.  But my main focus here is to ask what is in it for everyone else in the Republican Party -- not just the high-level people who do not have presidential aspirations but the middle-level politicians who are eagerly looking forward to a post-constitutional U.S. political system.  My assertion here is that they might find themselves very disappointed by life in a one-party state.

Wednesday, October 14, 2020

Judge Barrett Herself Explained Why "The Law As Written" Often Merges With Her "Preferences"

 by Michael C. Dorf

One current and two deceased jurists loom large over the Senate Judiciary Committee hearing regarding Judge Amy Coney Barrett's nomination to the Supreme Court. The living one is Judge Merrick Garland. GOP Senators' rush to confirm Barrett after their refusal to hold hearings for Garland display their hypocrisy--as do the self-serving and post-hoc justifications they have offered for a naked power grab by a party eager to capitalize on the least democratic features of our political system.

To be sure, Lindsey Graham opened the hearing on Monday with the declaration that "there's nothing unconstitutional about" what he and his fellow Republicans are doing. That's true but beside the point. There was nothing unconstitutional (or even illegal) about Graham becoming Donald Trump's boot-licking caddy after calling him a "race-baiting, xenophobic, religious bigot" and a "jackass." There would be nothing unconstitutional if one of Graham's colleagues were to take to the Senate floor and falsely claim that Graham is a Satanist who each night goes out disguised as a nurse to deliberately spread COVID-19 in local hospitals. Indeed, such a false statement could not even be made the basis for a defamation suit by Graham because it would be protected by the Speech & Debate Clause of the Constitution's Article I, Section 6.

No one seriously claimed that the Barrett confirmation process is unconstitutional or illegal. We Democrats have said it is an exercise in norm-busting hypocrisy. That's why I argued that Senate Democrats should not even engage with the merits of Barrett's nomination. Democratic Senators have focused substantial attention on Republican hypocrisy but they have not otherwise heeded my advice--which is fine, of course. I'm a constitutional law scholar, not a political strategist, and presumably the Senators have received advice from people who are more experienced than I am at projecting how their approach will play.

What is that approach? Thus far, Democratic Senators have been using the hearing as an opportunity to point to the ways in which Barrett poses an immediate threat--for example, she could cast a decisive vote to invalidate the Affordable Care Act--as well as a long-term one--for example, she could cast a decisive vote to rescind the constitutional right to abortion. Those are important concrete points, but there is a larger one that, in a world with an attention span longer than a sound bite, would ideally receive some attention.

A fruitful line of criticism would point to the two deceased jurists whose names have been most frequently invoked in the last few weeks: Antonin Scalia--Barrett's mentor and role model--and Ruth Bader Ginsburg--whose seat Barrett would fill and whose legacy she says she honors. Scalia and Ginsburg were famously friends who enjoyed each other's company at the opera and elsewhere. But they espoused very different judicial philosophies.

Tuesday, October 13, 2020

Republicans Like Court-Packing, and Maybe You Should, Too

by Neil H. Buchanan
 
Is it too late to change the narrative on so-called court packing?  As I noted at the beginning of last Friday's column here on Dorf on Law, we have already lost the supposedly neutral headline writers at The New York Times, who label any discussion of changing the structure of the Supreme Court with that negative-sounding term.  The Times has, moreover, continued in the days since then to treat this Republican-friendly framing as the unexceptional default.

And it is not only the most influential newspaper in the country that has fallen into this black hole.  MSNBC's anti-Trump opinion shows are buying in, with what was otherwise an excellent segment with Senate Minority Leader Chuck Schumer -- who never used the term court packing -- being accompanied by a chyron reading: "SEN. SCHUMER (D-NY) ON COURT PACKING."
 
Heck, in a press conference in which Joe Biden quite effectively said that expanding the Supreme Court is not a pressing issue right now (and added that he is "not a fan" of the idea, which I found disappointing), even he used the dreaded words court and packing as if the phrase means something.

So the reputedly liberal press has painted Democrats into a corner on this, and the Democrats themselves have shown no inclination to fight it.  What now?  Own it!  Allow me to explain.

Monday, October 12, 2020

The Myth of the Originalist Judge

 By Eric Segall

When the Senate begins its confirmation hearings for Judge Amy Coney Barrett today, she will no doubt identify herself as an originalist when it comes to constitutional interpretation. Her mentor, Justice Scalia, was famous for preaching originalism as the best method for deciding constitutional law cases, as have current Supreme Court Justices Clarence Thomas, Neil Gorsuch, and Brett Kavanaugh. But all these justices as well as Judge Barrett are selling snake oil because there is no such thing as an originalist judge. What these judges are actually doing is hiding their personal value judgments behind a false veneer of history. There are conservative judges, liberal judges, and moderate judges, but there are no originalist judges.

Friday, October 09, 2020

Stealing the Election: Why is the Media Blithely Accepting and Repeating Trump's False Premises?

by Neil H. Buchanan
 
Jamelle Bouie, a liberal/progressive columnist for The New York Times, wrote a thoughtful analysis today describing how Democrats can respond to the Republicans' decades-long strategy to stuff the courts with hard-right radicals.  I recommend reading the entire piece, but I will quote here only the last two paragraphs:
"I have no doubt that Republicans will confirm Barrett, if they can manage it. If the past four years have been a smash and grab, where Trump smashes our institutions and the Republican Party grabs as much political loot as it can carry, then an additional seat on the Supreme Court is too valuable a trophy to give up. But there is no rule that says you get to keep stolen goods, and the Barrett seat — like the Gorsuch seat — represents a theft. 
"If Democrats make Republicans pay a political price in November for their rank and ruinous opportunism, then in January they should use their power to restore to the people what was taken from them." 
Nowhere in that article does Bouie refer to what Democrats might choose to do as "court packing," yet the headline of the column screams: "Court Packing Can Be an Instrument of Justice."  Heck, even the URL for the piece includes that provocative term, even though Bouie never once uses it in his piece: https://www.nytimes.com/2020/10/09/opinion/court-packing-amy-coney-barrett.html.
 
Having at times had my headlines changed in unaccceptable ways by an editor who then refused to budge, I know that Bouie is unlikely to have written, approved of, or even been aware in advance of the headline that would introduce his work.  And that is the point, because when headlines are written by anonymous editors, hidden biases and unexamined assumptions are revealed.
 
Indeed, The Times on the news side (not op-eds) has taken to referring routinely to this set of issues as "court packing," as if that were merely a descriptive term.  Similarly, in an otherwise nonpartisan description of Mike Pence's decision not to mention abortion during the non-debate this week, The Washington Post's David Byler casually tossed off this line: "Pence was free to quickly attack Biden and Harris as extreme on reproductive rights and move on to a longer, more memorable exchange on court-packing."
 
News sources are now reporting that possible Democratic moves to change the courts starting in 2021 do not poll well, which is no surprise.  Everyone knows that court packing sounds unseemly.  What Democrats would be doing, however, is unpacking the judiciary, attempting to undo years of Mitch McConnell's packing of both the lower courts and the Supreme Court by any means necessary.

In part, this is merely a specific example of the old adage that "if you can name it, you can own it" in politics.  My concern today, however, is not that Democrats have too passively accepted the losing rhetorical position (although they clearly have) but that supposedly objective news sources all too often accept Republicans' versions of issues -- not just in labeling but in understanding the issues substantively.

Let us start with the an existential crisis facing the country today: Will Donald Trump and the Republicans be able to steal the election by making false claims of ballot fraud, pushing their own people into the Electoral College, and possibly having the House of Representatives install Donald Trump in office?

Thursday, October 08, 2020

What Does a Good Election Outcome Look Like (or: Do Republican-Appointed Justices Have Any Shame)?

by Neil H. Buchanan

I happen to have a very low tolerance for smarminess, but even those who think that Lifetime TV movies are too subtle must surely have a very hard time watching Mike Pence.  Accordingly, the only way that I can consume an event like last night's joint press conference with Pence and Senator Kamala Harris is by reading news coverage and watching various talk shows (where even exposure to 15-second clips threatens to send me into convulsions).

Given that none of these so-called debates are actually debates, I no longer feel in any way honor-bound to treat them seriously, as I used to try to do (especially given my many years of involvement with scholastic and collegiate debating).  The only thing that matters is how the punditocracy scores them, and even that matters only a tiny bit.  For what it is worth, then, the consensus appears to be that nothing particularly important happened last night, and the event changed nothing.

That is good, I guess, although it is kind of astonishing that even people like Stephen Colbert were saying that the event felt refreshingly normal.  I guess it was normal in the sense that Pence is a standard-issue movement conservative Republican who lies his way through everything, just as Mitt Romney and Paul Ryan did in their debates in 2012.  And it is normal for Republicans to try to turn Democrats' substantive policy critiques into "insults to the American people," or something.  In 2020, it is even normal for Trumpists to say that people as individuals will make the best decisions about dealing with the pandemic, so we should not allow Big Government to impose science-based standards.  It is all normal.  Sickening (in more than one sense), but normal.

What did surprise me is that Pence could not even work up a leaden, eye-rolling response to the question of the peaceful transition of power.  After all, in 2016, Pence was the guy who sighed and said that of course he and Trump disavowed white supremacists, acting as if they had been so utterly clear in their denunciations that it was a waste of everyone's time even to have to answer the question again.

But instead, we saw a truly troubling non-denial.  Pence's boring superpower is in being able to lie shamelessly while acting as if any suggestion of inappropriateness on Trump's part is absurd.  Condescension and harrumphing are his calling cards.  All he had to do last night, then, was to furrow his brow, shrug his shoulders, and say: "I can't believe we're still talking about this.  All President Trump ever said was that he would not allow the election to be stolen, which I think we should all want any president to say."

That, of course, would have been horsesh*t.  Even so, it would have at least allowed Pence to say that he and Trump obviously believe in the peaceful transfer of power, in the best traditions of modern democracy.  Instead, he recited a litany of complaints about Democrats supposedly trying to undo the 2016 election, perfidy by the Obama Administration and (predictably) Hillary Clinton, and other distractions.  It was whataboutism as gaslighting, and it most definitely did not even pay lip service to the idea that power must be transferred peacefully.

All of which brings me to my question today: What is the best-case scenario for the post-November 3 world that ends in Trump and Pence leaving office on January 20, 2021?  I raise this question in large part because I am trying to remain optimistic, given that my recent writings (in particular my co-authored Verdict piece last week with Professors Dorf and Tribe) attempt to show why the various strategies by which Trump is intent on creating chaos have no basis in the law.

But if even a human quaalude like Mike Pence is not bothering to promise (however insincerely) that the rule of law matters, how might the U.S. political and legal system nonetheless hold together sufficiently to force Trump to accept losing the election?

Wednesday, October 07, 2020

Second Amendment Conference Friday

 by Michael C. Dorf

On Friday of this week I'll be participating in an all-day symposium sponsored by the Duke Center for Firearms Law and the Northwestern University Law Review: The Second Amendment's Next Chapter. Like just about every other academic conference these days, we panelists will be attending via Zoom, which has, as an upside, relative ease of viewing for interested audience members. Registration info can be found here. The schedule (using Central Time) can be found here.

I often use the occasion of an upcoming conference or public speech to preview my remarks on the blog, but for this conference I'm in the course of writing up my paper and will therefore wait until I have it closer to finished to summarize it in substantial detail. For now I'll just say that: (1) My paper is tentatively titled When Two Rights Make a Wrong: Armed Assembly Under the First and Second Amendments; (2) it expands on my 2017 analysis of the Charlottesville march and mayhem; (3) I argue that using standard sources of text, history, and doctrine, neither the First nor Second Amendment protects a right to armed assembly; (4) nor, I say, do they combine to produce such a right; and (5) finally, I look at the somewhat bewildering array of approaches the Supreme Court's cases have taken in cases involving combinations of constitutional provisions. Although there are contexts in which two non-rights combine to make a right, I conclude that this logic, which is dubious in its most well-known setting (the so-called hybrid right doctrine spawned by Employment Division v. Smith), does not, in any event, apply to armed assembly.

That's all for now. I might have more to say about the conference in a follow-up post.

A Tale of Two American Heroes and the Absurdity of Life Tenure for SCOTUS Justices

 By Eric Segall

Thurgood Marshall and Ruth Bader Ginsburg would both have been American heroes had neither one spent a single day on the United States Supreme Court. Both were trailblazers who spent their finest years fighting for equality. Excellent litigators who knew that change often comes slowly and reluctantly to our nation’s highest Court, they employed brilliant strategies to convince the justices to require formal legal equality for people of color and women. Their legal careers and achievements are quite similar--including how they reflect on the inanity of life tenure for Supreme Court Justices.

Tuesday, October 06, 2020

Be Very Afraid of Trump

 by Michael C. Dorf

The late great Israeli diplomat Abba Eban famously quipped that Palestinians "never missed an opportunity to miss an opportunity." Whether that was fair and whether it might also apply to Israelis as well are questions about which I express no opinion. However, I would like to borrow the line to adapt it to the Trump administration. In just the last week, we have seen Donald Trump and the sycophants who surround him repeatedly take the opportunity to miss an opportunity.

The first Presidential debate--which was less than a week ago!--presented Trump with a softball for the ages when moderator Chris Wallace asked Trump to denounce white supremacy. Trump not only whiffed but appeared to compound the problem by encouraging the Proud Boys to "stand back and stand by," as though readying them for further action. Even so, the very next day, Trump could have done himself a huge favor by saying something like the following:

Mr. Wallace asked me to denounce white supremacists and I said "sure," meaning I denounced them. He asked that I instruct them to stand down and I did so using the phrase "stand back and stand by." Apparently, some people misunderstood the words "stand by" to be an instruction to prepare to take action. That is not what I meant. Just in case there's any confusion, I'll clear it up now. I unequivocally condemn white supremacists and any violent actions they might take or threaten.

Trump could have done that. Indeed, he still can. But he almost certainly won't, and not simply because the news cycle has moved on. Why won't Trump make a statement like the foregoing? Here are three non-exclusive possibilities: (1) Trump is a racist/white supremacist himself; (2) Trump is an egomaniac who never wants to disavow anyone's support because he so enjoys bathing in admiration; and/or (3) Any kind of backtracking would feel to Trump like weakness, which is off brand.

Without discounting (1) and (2), I want to explore (3) as an explanation for why Trump has also been grossly mishandling the public relations aspects of his COVID-19 diagnosis.

Monday, October 05, 2020

Inescapable Surveillance

by Matthew Tokson

I recently posted a new draft article to SSRN, "Inescapable Surveillance," forthcoming in the Cornell Law Review. It deals with the idea of "inescapability" in Fourth Amendment law, although many of its conceptual arguments apply outside of that context as well. 

The concept of inescapability surfaced in its modern form in Carpenter v. United States. Before Carpenter, Supreme Court precedent dictated that a person waived their Fourth Amendment rights in information they disclosed to another party. In Carpenter, however, the Court established that the Fourth Amendment protects cell phone location data even though it's revealed to others. The Court emphasized that consumers had little choice but to disclose their data, because cell phone use is virtually inescapable in modern society.

In the wake of Carpenter, many scholars and lower courts have endorsed inescapability as an important factor for determining Fourth Amendment rights. Under this approach, surveillance that people can't feasibly escape receives more Fourth Amendment scrutiny, while surveillance that can be avoided receives less, or none. This is currently the dominant paradigm of Fourth Amendment search law post-Carpenter.

Friday, October 02, 2020

Can Yard Signs Dictate the Scope of the Fourth Amendment?

by Matthew Tokson

In recent years, the Supreme Court has added a "trespass test" on top of the "reasonable expectation of privacy" test for Fourth Amendment searches. Under the trespass test, any government touching of "persons, houses, papers, [or] effects" for information-gathering purposes is a Fourth Amendment search.

This simple-sounding test, adopted in its modern form in 2012, has in short order produced several difficult questions for courts. In 2013's Florida v. Jardines, the Court's application of the test turned on a detailed analysis of the "background social norms" around approaching a house's front door. A divided Court ultimately concluded that these social norms prohibited the use of a drug-sniffing dog near the entryway of a house. Homeowners implicitly consent to police and other visitors approaching their door, knocking, and perhaps asking them questions or glancing around the doorway area--but owners do not implicitly consent to "canine forensic investigation." Accordingly, the police (and their dog) were physically touching the yard of a house without permission, which was a Fourth Amendment search requiring a warrant.

If a homeowner implicitly consents to police officers knocking on their doors, can they revoke that consent with a yard sign?