The Cynical, Racist, Counterproductive Logic of Trump's "Fear Joe Biden's America"

 by Michael C. Dorf

When the speakers at last week's Republican National Convention were not trying to persuade America that there exists a hitherto-unseen Donald Trump who is a competent and compassionate human being, they were mostly issuing a not-at-all-veiled warning to suburbanites that Joe Biden's America will feature widespread and nonstop violence. As numerous commentators observed, the message is odd. Trump is warning that what people are seeing on the news from Portland, Chicago, Kenosha, and other "Democrat-run" cities will happen if Biden is elected, but of course, the people are seeing what's happening now, in Donald Trump's America (except for the video clip of Barcelona in 2019 that the RNC aired).

Trump came into office promising to end "American carnage" that did not exist. He's running for re-election warning that his opponent will bring about carnage even as he himself has done just that. Who would possibly buy that argument?

Here I want to suggest--worry might be a better word than suggest--that millions of Americans might buy it. Do you remember your President Nixon? He ran for office in 1968 in an extraordinarily violent time because of high-salience assassinations of Martin Luther King, Jr. and Robert Kennedy as well as an upward trend in violent crime, punctuated by civil unrest and violence sparked by institutional racism and police misconduct (as detailed in the Kerner Commission Report released that year). It is easy to see how Nixon's tough-on-crime message as part of his "Southern Strategy" resonated with white voters. It's harder to see why Trump's 2016 racist message on crime did, in light of the fact that crime rates were very low during the Obama years.

But I'm not interested now in contrasting Nixon's 1968 campaign with Trump's 2016 campaign. Instead, I want to compare their messages in, respectively, 1972 and 2020. One might well think that voters would have punished Nixon in 1972 for the failure of his get-tough approach. After all, violent crime continued its steady rise from Nixon's inauguration in 1969 through the election in November 1972 (and beyond). And yet Nixon won re-election in a landslide. Did voters stop caring about crime? That's highly doubtful. A more plausible explanation is that bad as crime was under Nixon, voters worried that it would be worse under McGovern.

The Complexity of Free Speech Doctrine

 by Michael C. Dorf

At 9 am today (that's Friday, August 28, 2020 if you're not sure when I wrote this), I'll be presenting a "Keynote" address on freedom of speech, available for free (but you need to register) through eCornell. This is a lecture for an all-day “boot camp” we provide for students taking Cornell's terrific First Amendment clinic. Most but not all of the clinic students will have taken our doctrinal class in the First Amendment (taught by my colleague Professor Nelson Tebbe). The boot camp lectures provide an overview for those who haven't and a refresher for those who have. I’ve given a version of the free speech lecture the last couple of years in person. We decided to open it up more broadly this year in light of the fact that it will be via electronic means anyway. The clinic students will be able to ask questions via Zoom, whereas the rest of the world will be able to enjoy (or detest or be bored by) my lecture as a webinar.

When I give remarks on a panel, I customarily preview them on the blog. Today I won't do that, because the webinar/boot camp is more in the nature of a class, in which I don't expect to say anything especially original or insightful. My goal in the lecture is to provide a kind of map of free speech doctrine. So, besides providing an advertisement for the course, what is my point in today's blog post? I'd like to say a few words about the complexity of free speech doctrine and what that tells us about constitutional interpretation more broadly.

Why Does Congress Not Run the Post Office Like a Business -- i.e., With Lax and Forgiving Rules?

by Neil H. Buchanan

 

Who could have imagined that the United States Postal Service would become a flashpoint in a national election, especially in the midst of a global health crisis?  Yet here we are, with movement conservatism's longstanding loathing of the Post Office having joined in an unholy alliance with Donald Trump's efforts to convince the world of the complete lie that mail-in voting is rife with fraud.

Here, I want to focus on the non-Trumpian side of that alliance, that is, on the decades of efforts by anti-government extremists to disparage the very idea of a national postal system run as a public service by the national government.  The reasons for that bone-deep hatred of the USPS are perversely fascinating on their own (de)merits, but there is a deeper hypocrisy involved as well.

We are All Legal Realists Now

 By Eric Segall

"Justice Douglas, you must remember one thing. At the constitutional level where we work, ninety per cent of any decision is emotional. The rational part of us supplies the reasons for supporting our predilections."  Chief Justice Charles Evan Hughes 

Last week I had the pleasure of having Mike on my podcast/video series Supreme Myths and, among other things, we had a nice chat about legal realism. This topic is extremely important given the trope that has been circulating among scholars and even Supreme Court nominees that Elena Kagan said at her confirmation hearing, "we are all originalists." This statement was proudly repeated by Justice Kavanaugh at his confirmation hearing, and it has been thrown at me numerous times during my debates with originalists, who often add the word "now" to Kagan's quote.

This post argues that originalists employing Kagan's line to defend originalism ignore the context of her statement. I also suggest that "we are all legal realists now" presents a much more accurate understanding of constitutional interpretation as it is actually practiced by our judges than the slogan "we are all originalists now." This post is purely descriptive and leaves normative concerns for another day.

Taking Another Look at Biden and Harris: More Than Good Enough!

by Neil H. Buchanan

It is political convention season, and I am deliberately not watching coverage of either party's virtual events.  Getting my information second-hand, it appears that the first night of the Republicans' extended-play version of Two Minutes Hate went even worse than expected.  Democrats, meanwhile, finished their event last week to generally quite positive reviews.

My big worry about the Democrats' approach is that they seem to have aimed their message entirely at the moderation-obsessed punditocracy, betting the house on the idea that playing the centrist card and eschewing ideology of any sort will allow them to appeal to the possibly null set of swing voters.  In an election almost certain to be decided by turnout, Democrats seem to be counting on people of color and younger maybe-non-voters to show up at the polls in droves, without really giving them an affirmative reason to do so.

To be sure, the negative reasons are more than enough, and I will once again spend much of the general election season trying to exhort people to understand just how bad Donald Trump is.  Sitting it out should not be an option, and I guess Joe Biden and the leaders of the Democratic Party made the calculation that non-centrists will still be motivated even after watching the convention elevate Republicans while sidelining progressive stars.

That being a matter of prediction, all I can say is that my semipro status as a political commentator means that one should take it with a grain of salt when I worry that the Democrats miscalculated.  I can at least say that, given what they tried to do, they seem to have done an absolutely great job of it.  One hopes that it pays off.

My goal here, however, is to take a moment to reassess positions that I took on Biden and Kamala Harris over the space of the last year or so.  As I (and many, many others) have said all along, no matter who ended up on the Democratic ticket, there would be no contest when comparing them to Trump and Mike Pence.  Even so, I did take some rather harsh stances against both Biden and Harris.  Should I recant?

 

What is Nonoriginalism? A Response to Professor Ramsey’s Misunderstanding of our Analysis of the Natural Born Citizen Clause

 By Michael C. Dorf & Martin S. Lederman

Earlier this month, Chapman law professor John Eastman wrote an op-ed in Newsweek proposing that Senator Kamala Harris might not be a “natural born citizen” (NBC)—and thus not eligible to be elected Vice President—if her parents, who were foreign nationals rather than U.S. citizens, were not permanent U.S. residents at the time of her birth in California. The op-ed’s title suggested that Professor Eastman was only raising questions, but its content affirmatively argued against Senator Harris’s eligibility to be president if her parents were “merely temporary visitors.”

Professor Eastman’s op-ed was quickly weaponized by Donald Trump and his supporters, who used it to provide a patina of respectability to a repurposed “birther” attack—once again targeting the historic candidacy of a person of color. Accordingly, it was important to set the record straight by showing that Professor Eastman’s view is not merely unorthodox but well beyond the limits of reasonable disagreement among well-informed scholars. Thus, we joined 39 other constitutional scholars who signed a letter explaining what was so very wrong with Professor Eastman’s analysis.

Our letter first explained that Professor Eastman mistakenly focused almost exclusively on the citizenship clause of the Fourteenth Amendment rather than the most relevant constitutional provision—the NBC clause of Article II. That clause, we explained, is at the very least informed by the common law idea of a “natural-born subject,” and for many centuries that common law had covered people such as Senator Harris who were born within the sovereign territory, subject only to narrow exceptions not implicated by her circumstances. Meanwhile, we noted that even on its own terms—as an interpretation of the Fourteenth Amendment—Professor Eastman’s analysis badly misfired. Among other difficulties, his view, if accepted, would not merely deem Senator Harris and millions of other Americans like her ineligible for the presidency and vice presidency but would strip them of their citizenship entirely (which would mean, among other things, that Harris and many other federal legislators wouldn’t be eligible to serve in Congress).

Because it expressed the extremely conventional wisdom, the letter we signed garnered support from scholars with a wide range of views on a great many subjects. It would surely have garnered even more support if the organizers had held it open for voluntary signatures rather than soliciting signatures from particular individuals (as they did in order to publish it quickly, which is the same reason we did not solicit signatures for this sur-reply from a larger group). In a post on the Originalism Blog, University of San Diego law professor Michael Ramsey wrote that he would have signed it, too, at least if it had included “a couple of minor modifications.”  We very much appreciate his general support for our conclusion about Senator Harris. Statements like his and one by UCLA law professor Eugene Volokh underscore that Eastman’s view falls nowhere within the range of opinions held by scholars with a very wide variety of methodological and ideological commitments.

In addition to agreeing with the substance of the response to Professor Eastman, however, Professor Ramsey implicitly accused at least some of the letter’s signers (including one of us by name) of hypocrisy, although Professor Ramsey was too polite to put the charge that pointedly. Professor Ramsey observed that some of its signers “are prominent originalism critics (Erwin Chemerinsky, Michael Dorf, Pamela Karlan, etc.). Yet here they rely on originalist arguments.” With due respect, we think that Professor Ramsey misunderstood both what the letter said and the nature of the broader critique of originalism. 

Bannon, the NRA, and their Victims

 by Michael C. Dorf

After NY Attorney General Letitia James announced that she was filing a lawsuit to dissolve the NRA for defrauding its donors, various wags (including the wags at NPR's Wait Wait Don't Tell Me news quiz) joked that prosecuting the NRA for defrauding its members would be harmful to the movement for gun control. Advocates of gun control should be pleased that its leadership was using donations from members for fancy clothes and vacations rather than to promote gun rights. That was a joke, in part because the remedy of dissolving the NRA would serve the interest of gun control too.

But still, one might think that the gun control movement would be better off with the NRA leadership siphoning off funds that would go to promote gun rights if it is displaced by a more honest organization with the same ideological aims. Of course, in saying that, I do not mean to imply that the ideological aims played any role in the decision of AG James to pursue the case; it would be improper to go after the NRA on those grounds, using the corruption allegations as a pretext. I'm raising the issue as an observer.

The same issue is raised by the criminal case now being brought against Steve Bannon for his having defrauded donors to his We Build the Wall organization. Isn't it better that a large chunk of the money that Trumpy donors gave to Bannon to build a private section of Trump's border wall go to paying for the expensive lifestyle of Bannon and his partners in fraud than to actually building even a small part of the wall?

The short answer in both cases is no. Corruption should be opposed, even when it takes the form of siphoning off money from bad causes.

Turning the Little People Against Each Other Is Conservatives' Second Most Reliable Strategy

by Neil H. Buchanan 

 

The eviction crisis in America is no longer "looming" but has already begun, thanks to Senate Republicans' refusal to extend protections against evictions and also to their cavalier opposition to renewing income supports for people who have been laid off during the roiling economic disaster of 2020.  The Trump Administration joins its Senate enablers in not caring about those millions of desperate people -- people who are not only losing their homes but are having their credit records tainted in a way that will make their lives more difficult for years or even decades to come.

 

John Oliver's "Last Week Tonight" did a typically great job discussing this then-pending crisis more than a month ago.  Earlier this week, I took a different tack and asked why the supposedly brilliant aggregation mechanism known as the Invisible Hand did not cause people on both sides of potential evictions rationally negotiating solutions that would avoid that bad outcome.  After all, the landlords and mortgage lenders are all living in the same disastrous economy that their renters and borrowers live in, and it is not as if there is a reserve army of qualified renters and buyers ready to fill the residences that evictions are currently emptying out.

 

(Side note: My use of the term "reserve army" here and in Tuesday's column is a reference to Marx's "reserve army of the unemployed," which captures the idea that employers like weak economies because unemployed would-be workers are a useful threat to current workers who might otherwise get uppity.  The analogy here is, I hope, obvious, even if the lefty nerd-reference is understandably obscure.)

My hypothesis in Tuesday's column was that the failure to renegotiate leases and mortgages was essentially a matter of tunnel vision, with the non-breaching side of housing contracts stubbornly insisting on doing during a crisis what they would be doing about "deadbeats" when times are good.  Here, I want to discuss the broader reasons why our system seems so incapable of groping its way toward a next-best solution that is both humane (preventing evictions and all that follows from them) and economically smart (reducing losses for owners/bankers as well as for their counter-parties).

 

To be clear, I refer to contract renegotiations as the "next-best solution" because the best policy would clearly involve spreading the losses more broadly through a Treasury-funded system of supports that would allow people to cover rent payments and mortgages in full each month.  My hypothesis is that the divide-and-conquer strategy that conservatives have long used to turn people against each other causes far too many regular Americans themselves to decry these solutions as immoral bailouts.  This, in turn, allows business interests and their Republican water carriers to continue to punish people for being the victims of bad luck.

The Justice Souter Speech Every Law Student Should Read

 By Eric Segall

School is starting again, sort of, and many law students will be taking constitutional law in one form or another. At most law schools, students will begin with Marbury v. Madison, or maybe McCulloch v. Maryland, and then work their way through over 200 years or so of Supreme Court cases involving many of our country's most difficult legal, social, and political issues. It is important that these students understand how the Supreme Court explains its decisions--usually in this form: here are the facts, here is the text relevant to the case, here is the history, here is the case law, and presto here is the conclusion. 

But it is also important that students understand that the Court rarely gives a full and accurate picture of why it rules the way it does in constitutional law cases. To truly understand constitutional law, and maybe more importantly, to develop critical thinking skills, which every lawyer needs, students need to be able to see and understand what Professor Jeremy Telman calls the "ipse dixit" moment in constitutional decisions. To oversimplify Telman's fine work, the ipse dixit moment is the crucial but non-textual, non-historical, non-precedent based value judgment that controls most constitutional decisions. 

Former Supreme Court Justice David Souter, shortly after his retirement, gave a commencement speech at Harvard that provides a much more accurate firsthand account of how the justices decide constitutional law cases than the one many law professors and Court commentators provide. Souter's speech should be required reading for all law students taking their first constitutional law course. This post summarizes the most important parts of that speech in order to demonstrate that formalist accounts of constitutional law fail to capture how the Justices actually operate or even could operate.

Why Would Any Landlord Evict Any Innocent Renter During a Crisis This Bad?

by Neil H. Buchanan

One of the many, many crises facing the country today is the very immediate threat that millions of Americans will soon be evicted from their homes, whether those homes are owned or rented.  With more than 16 million people currently unemployed (ten million more than in February) and millions of others suffering from declining incomes, and with various types of federal assistance having expired three weeks ago, things are looking more and more dire.

The big political story here is obviously the utter lack of concern that Republicans in the Senate and in Donald Trump's administration have shown for the plight of these people, none of whom did anything to deserve this terrible turn in their lives.  Because the sensible (and humane) policy responses to the current problem are blindingly obvious and not at all difficult to enact and implement, Trump and his enablers' indifference is all the more disgusting.

Because this human tragedy has a non-mysterious policy solution, however, there is nothing new to say about what a first-best path would entail.  That policy response is not currently in the cards, however, so I want to use this space to discuss a more interesting related question: Why are the people who are directly involved not being at least minimally creative in thinking about how to respond to the now-ongoing eviction crisis?

 

In particular, if economic markets were as magically capable of reaching socially optimal outcomes as conservatives say they are, would we not expect people to have figured out a way to "contract around" the eviction problem?  Put differently, why are landlords and banks not seeing that evicting people is most likely not even in the evicters' own self-interest?

Vertical Precedent in the Challenge to Male-Only Draft Registration (and Beyond)

by Michael C. Dorf

Last week, a panel of the US Court of Appeals for the Fifth Circuit reversed a district court judgment that had found male-only draft registration to be an unconstitutional denial of equal protection. The terse opinion in National Coalition for Men (NCM) v. Selective Service System was based on the following reasoning: (1) the Supreme Court rejected the contention that male-only draft registration was unconstitutional sex discrimination in the 1981 case of Rostker v. Goldberg; and (2) lower courts are bound to follow the holding of a precedent by a higher court "even where subsequent decisions or factual developments may appear to have ‘significantly undermined’ the rationale for [the] earlier holding."

Proposition (2) includes a quotation from a dissent by Justice O'Connor in Roper v. Simmons, but as the Fifth Circuit opinion correctly notes, the same proposition can be found in majority opinions in State Oil Co. v. Khan (1997) and Rodriguez de Quijas v. Shearson/Am. Express, Inc. (1989).

The Fifth Circuit's reasoning looks sound, which leaves us with a puzzle. Federal district courts are bound by both appeals court precedents in their circuits and SCOTUS precedents. Why, then, didn't Judge Miller likewise make short work of the plaintiffs' arguments? The answer is that the State Oil/Rodriguez rule is highly problematic.

Hoarding and School Reopenings

 by Michael C. Dorf

My father passed away last month at the age of 89. (He did not have COVID-19.) Since my mother's death in 2013, my dad had lived alone in the house in which I grew up, maintaining a very active social life chiefly consisting of getting together with friends and family as well as attending concerts, operas, lectures, ballets, and films. During the pandemic, I spoke with him by phone every day but could not see him in person for fear of exposing him to unnecessary medical risk. I initially believed that I was calling daily to check up on him and to help him avoid social isolation, but I soon discovered that I looked forward to our talks as the highlight of my day. I also came to think of his physical isolation as an accidental blessing. For several years, my sister and I had been urging our father to sell his house and move to an apartment in something like assisted living, because his balance and physical stamina had declined (though his mind remained sharp). That he had remained in his longtime home instead meant that during the pandemic he was not exposed to the risks to which many older people living in group settings have succumbed. Would his decision to remain in a large suburban house been sensible even had there been no pandemic?

I remember a conversation we had a few years ago when I raised the possibility of moving. "All my memories are here," my father objected.

"No they're not," I replied. "Your memories are in your brain. They'll move with you."

As usual on the infrequent occasions when we disagreed, dad was right and I was wrong. There is clear evidence that the brain associates memories of particular events with particular places. It also associates memories with music, smells, and objects.

Such associations are the subject of the first two episodes of Season 5 of Malcolm Gladwell's Revisionist History podcast, which examine the question why museums collect so many objects they never display and connects it to the call for the return of art stolen or sold under duress during the Holocaust and other such episodes. Gladwell diagnoses most museum curators as hoarders. Like so much of Gladwell's oeuvre, these episodes include what are surely over-generalizations, but they also include genuine insights into hoarding--many of them drawn from a book on that subject by Gail Steketee and Randy Frost. I found the insights particularly interesting because it has only lately dawned on me that maybe my father was a hoarder.

The Discomforts of Assessing Jim Crow-Era Politicians

by Neil H. Buchanan

Brown v. Board of Education is, of course, one of the landmark Supreme Court cases in American history and a touchstone in constitutional law.  To this day, legal scholars try to make sure that their preferred interpretive theories comport with the outcome in Brown -- even when those theories seem to point in the opposite direction -- because the idea that the U.S. Constitution would allow public schools to be segregated by race is simply repugnant.  No one, it seems, wants to be on the wrong side of that history.

But many people were very much in the wrong at the time and for a long while thereafter.  Moreover, even though being anti-Brown is now a fringe position, it is difficult to look at the country's regression toward open racism in the Trump era and not think that a depressingly large number of current American politicians and citizens would be willing to reject Brown today.  Once, "massive resistance" was the order of the day among almost all Southern politicians.  Now, although I hope that I am being too pessimistic, it seems increasingly clear that a very large minority of the country is not as committed to desegregation as we might have hoped.  (Donald Trump's missives to "suburban housewives," playing on racist fears about low-income housing, are certainly premised on that likelihood.)

I have been thinking about Brown again lately, because it came up indirectly in my research as I wrote last Thursday's column, "The New Poll Tax in the Florida Felon Disenfranchisement Mess."  There, I discussed another major achievement of the Civil Rights era, when Congress and the states adopted the 24th Amendment to the United States Constitution, the pertinent part of which reads: "The right of citizens of the United States to vote ... shall not be denied or abridged by the United States or any state by reason of failure to pay any poll tax or other tax."

 

Here, I want to contrast the political reaction in the South to Brown with support by some segregationists for the 24th Amendment.  One might reasonably have expected that white supremacists would have been just as firmly opposed to both civil rights advances, but in fact one of the most prominent anti-Brown voices was key in pushing the 24th through to ratification.  Why the difference?

 

I hasten to say that I am not a historian, and I do not intend to claim any special insight regarding the deep and complicated factors at play in the Jim Crow South.  Instead, I am approaching this as part of the process of asking how we should assess historical actors who were on the right side of one issue but the wrong side of others.  In particular, what do we do about buildings named after those politicians?

 

A Few More Thoughts on Supreme Court Secrecy

by Daniel Epps

I'm pleased to be blogging at a venue I've been reading with pleasure for years. In my in inaugural post, I thought I'd offer a few more thoughts on the topic that has been on my mind this last week: secrecy at the Supreme Court. Mike has a thoughtful post on the topic, partly responding to my piece. I agree with much of what he says, and in any event I won't use my first post here to offer a rebuttal to the blog's founder and namesake! Instead, I'll just note that in my first-best world, we woudn't necessarily have more leaks. But we would have guaranteed disclosure, within a fixed and relatively short time period, of information that the current system treats as confidential. I'd like to see such a system adopted as a matter of formal rule or statute. 

In terms of exactly how long that short time that period should be: I could live with ten years, though I suspect the necessary time limit to prevent disclosure from causing serious harm to the deliberative process might be a good deal shorter. Indeed, I think there may even be a significant difference betweeen (1) disclosure before the decision, or within a few days of its announcement; and (2) disclosure a few weeks or months after the decision, by which point the Court and the decision will be much less salient in the public eye. But in any event, some required disclosure after some set period would be an improvement. 

The specific reforms I'd like to see would have a couple of components: (1) an expiration date for confidentiality obligations binding law clerks and other insiders and (2) mandatory retention and disclosure of internal Court papers (memos to the conference, draft opinions circulated to other Justices, and the like). Right now, what we have is a system in which informal norms and practices govern this kind of disclosure. 

In the Pandemic, a Little Bit of Economic Knowledge Is Even More Dangerous Than Usual

by Neil H. Buchanan

Watching Republican politicians try to talk about economics is a combination of hilarious and terrifying.  With few exceptions, they are mouthing talking points that they do not understand, hoping to sound intelligent by intoning phrases like "incentivizing people not to work," "fiscally irresponsible borrowing," or "inefficient allocation of resources."  Their only true skill is figuring out how to dodge followup questions from reporters.

Of course, there are also many Democrats who similarly know nothing but what staffers have written for them, which means that it is not in fact the politicians who are making themselves themselves look good or bad.  Ultimately, what matters is whether the talking points themselves are actually defensible.

 

And one genuine public service that Republicans have performed over the past generation is proving that -- spin or no spin -- they as a group have zero understanding of how economics works.  This unwillingness to learn is especially surprising, moreover, because they have lived through two huge real-life lessons (the Great Recession of 2009-10 and the Trump-fueled disaster of 2020-22) that amply demonstrate that Republicans' obsession with punishing people for losing their jobs (among many other articles of conservative faith) makes no sense -- and is cruel to boot.

Even though the Republicans' bad economic ideas are thus not a matter of particular individuals making analytical mistakes, however, there are occasionally some politicians who try to hold themselves out as brilliant thinkers who understand economics better than everyone else.  The thankfully-former House Speaker Paul Ryan was a particularly sad and destructive case of a B or B+ undergraduate student who thought that he should have written the textbook, but current Senator Rand Paul is in some ways even worse.

At the beginning of my Verdict column last week, "Economic Theory Shows that People Will Make Choices that Worsen the Pandemic," I discussed Republicans' insane belief that unemployment benefits cause people not to take jobs (that do not exist).  Because that was relatively familiar ground, however, I then turned to an especially silly public performance by Rand Paul, where he debuted what one might call his "My expert is better than your expert, but screw experts, anyway!" approach to the pandemic.

Here, I will briefly go back over the particulars of what Paul said, in order to center the discussion.  More importantly, however, it is important to discuss the larger disease of which Paul's outburst is merely a symptom: the belief among conservatives that "economics proves" that government is always the problem.  Paul extends that faith-based belief into epidemiology, which is dangerously absurd but also usefully exposes the logical fallacy on which he and his cult rely.

 

Deliberate Indifference

by Michael C. Dorf

There is so much that is wrong with the Supreme Court's order last week in Barnes v. Ahlman that it is hard to know where to begin. A federal district judge ordered an Orange County, CA jail to implement various measures to reduce the risk of COVID-19 spread among the inmates and pre-trial detainees who are housed there. The Ninth Circuit declined to stay that order pending appeal, but the SCOTUS took what used to be the extraordinary step--but has become an increasingly common step--of intervening to stay the injunction without opinion. The vote was 5-4, with the Republican appointees in the majority. Justices Breyer and Kagan dissented but did not write. Justice Sotomayor, joined by Justice Ginsburg, did. I commend her dissent to readers. Here I'll note a few key points before turning to my own contributions.

Arrogant Nuttiness: Constitutional Law in a Justice Thomas World

By Eric Segall

Much has been written about Justice Clarence Thomas' oft espoused view that he doesn't believe in following prior cases if they were obviously decided incorrectly. Whereas all the other Justices at least pay lip service to ideas of reliance, predictability, and other rule of law type values inherent in the nature of stare decisis, Thomas rejects those factors. In his own words (and please forgive the long but necessary quote):

In my view, the Court’s typical formulation of the stare decisis standard does not comport with our judicial duty under Article III because it elevates demonstrably erroneous decisions...over the text of the Constitution and other duly enacted federal law. It is always 'tempting for judges to confuse our own preferences with the requirements of the law,' Obergefell v. Hodges (Roberts, C. J., dissenting), and the Court’s stare decisis doctrine exacerbates that temptation by giving the venire of respectability to our continued application of demonstrably incorrect precedents. By applying demonstrably erroneous precedent instead of the relevant law’s text—as the Court is particularly prone to do when expanding federal power or crafting new individual rights—the Court exercises “force” and “will,” two attributes the People did not give it. The Federalist No. 78....We should restore our stare decisis jurisprudence to ensure that we exercise 'mer[e] judgment,' ibid., which can be achieved through adherence to the correct, original meaning of the laws we are charged with applying. In my view, anything less invites arbitrariness into judging.

There are so many troubling aspects of this paragraph that it is hard to know where to begin, but this piece is as much about Thomas's substantive vision of the Constitution as his uniquely crazy views about prior cases and the rule of law. Therefore, before diving into the major cases Justice Thomas would overturn, it would be beyond human nature for me not to mention that virtually no constitutional cases the Justices decide to hear can be decided by the "text of the Constitution."

The New Poll Tax in the Florida Felon Disenfranchisement Mess

[Note to readers: My new Verdict column, "Economic Theory Shows that People Will Make Choices that Worsen the Pandemic," was published this morning.  Typically, we at Dorf on Law pair a follow-on column here to expand on some aspects of our Verdict columns.  I plan to do that next Tuesday rather than today, however, because I want to discuss an important case that is pending in the 11th Circuit.  As I will describe below, I have now co-signed an amicus brief in that case.]

When is a tax not a tax?  According to a new amicus brief that twelve other tax law professors and I co-signed this week, the constitutional prohibition on imposing a "poll tax or other tax" most definitely applies to taxes that are given a different label (fees, fines, and so on).  Drafted by some excellent lawyers at Debevoise and Plimpton, the brief argues that anything that functions as a tax -- an obligation to pay the state that carries the force of law -- cannot be used to deny any American the right to vote.

That is the bottom line.  How we get there matters, of course, in particular by making it clear that intent -- even the intent to collect money for public purposes -- is not what makes a tax a tax.  Without a broad definition of taxes for constitutional purposes, motivated legislators could choose to take away voting rights even -- or, as strange as it may seem, especially -- if they did so by admitting that they were imposing financial obligations for explicitly anti-voting purposes.

There is a lot to discuss here, and to understand what is at stake, we need to go back a couple of years.

Leaks, Legal Realism, and Private Deliberations

by Michael C. Dorf

My latest Verdict column discusses a four-part series on the Roberts Court by reporter and judicial biographer Joan Biskupic, which appeared on CNN.com last week. Although I express admiration and respect for Biskupic (whom I have known for many years), I criticize the entire genre of behind-the-scenes reporting on the Supreme Court. My point is not that the Court should be shrouded in glorifying secrecy but that the revelations by Biskupic and others are invariably duds. They provide virtually no insight into the Court's workings that is not apparent from reasonably careful study of its public product.

Here I'll elaborate a bit further on how the revelations fail to illuminate in order to confirm my conclusion that the reporting has virtually no public benefit. I'll then describe the cost of leaks of what ought to be private deliberations. Although I don't think the cost is very large, it is large enough to outweigh the nonexistent benefit.

The Tender Feelings of Factory Farmers as a Window into Two Types of Conservative Hypocrisy

by Neil H. Buchanan

Back in college, a friend who was a pre-med student landed an internship in a research laboratory.  She left for her first day on the job with great excitement, but she returned looking distraught.  Why?  It turned out that her job was to handle animals (including, as I recall, even domesticated animals like cats) that were going to be the subject of experiments, after which they would be killed -- by my friend.  (The passive voice can hide very pointed realities, indeed.)

When I asked her whether she would quit, she said that she was planning to finish the semester as planned, even though it would be emotionally draining.  She then offered this: "I'm telling myself that at least I'll do what I can to make the lives of these doomed creatures as comfortable as possible while they're still alive."  I never spoke with her about that subject again, and I assume that she is now a successful physician who tries to be good to animals.

This memory came back to me recently as I wrote my 2020 veganniversary column, in which I quoted extensively from a New York Times piece by Jonathan Safran Foer.  (Safran Foer's piece is admirably forceful, but it is worth noting that he has a history of being rather evasive about veganism -- and that is putting it kindly.  I have updated my column to add that clarification.). One surprising aspect of his piece was this paragraph, which followed a description of the Covid-19 outbreaks at meat processing plants:

"Sick workers mean plant shutdowns, which has led to a backlog of animals. Some farmers are injecting pregnant sows to cause abortions. Others are forced to euthanize their animals, often by gassing or shooting them. It’s gotten bad enough that Senator Chuck Grassley, an Iowa Republican, has asked the Trump administration to provide mental health resources to hog farmers."

Here, I will discuss two ways in which Grassley's request highlights Republicans' fundamental hypocrisy.

The "Mosaic Theory" and the Aftermath of Carpenter

by Matthew Tokson

Recently, Orin Kerr has raised some interesting questions about how lower courts are using the "mosaic theory" of the Fourth Amendment after Carpenter v. United States. The mosaic theory generally refers to the idea that courts should look at police surveillance in the aggregate, rather than examining each instance of surveillance in isolation. So tracking someone's car for 3 months might require a warrant, even if tracking them for 3 minutes would not. 

Kerr notes that some lower courts have accepted the mosaic theory while others reject it, and wonders how many there are of each. As it happens, I have a coded database of every available decision citing Carpenter (for another project), and can speak to some of these questions. After doing so, I'll offer a suggestion for distinguishing two conceptions of the mosaic theory to make sense of what the lower courts have been doing.