Friday, October 30, 2020
Why Don't Republicans Simply Admit Now that They'll Happily Carry Out Trump's Coup?
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
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
"[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."
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
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
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
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?
"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."
Thursday, October 08, 2020
What Does a Good Election Outcome Look Like (or: Do Republican-Appointed Justices Have Any Shame)?
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?