Monday, November 30, 2020

Richard Epstein's Laffer Curve of Death

by Michael C. Dorf

With COVID-19 cases and deaths in the United States setting daily records, this seems like an appropriate time to check in on NYU Law Professor and libertarian public intellectual Richard Epstein. Recall that back in March, Epstein wrote a column for the Hoover Institution website condemning what he thought was shaping up to be a governmental overreaction to the pandemic. In that column, Epstein predicted that even without substantial government interventions, the total number of COVID-19 deaths in the United States would be around 500. Shortly thereafter, Epstein acknowledged what he called a "stupid gaffe." He should have said 5,000 U.S. deaths and 50,000 deaths worldwide. The original column was thus corrected (at least twice).

Yet, as I explained in an essay shortly after Epstein published his analysis, even his "revised estimate [wa]s still probably at least two orders of magnitude too low." I wish I could say that I was wrong, but it is now clear that I was right. Each power of ten is an order of magnitude. Epstein predicted US deaths in the four figures and global deaths in the five figures. We have already experienced US deaths in the six figures and global deaths in the seven figures. As I predicted, even after correcting for his self-diagnosed stupidity, Epstein remained two orders of magnitude off.

We know from Bob Woodward that as early as February, Donald Trump chose to downplay the COVID-19 risk. But we also know that Trump is mercurial and thus might have been led by advisors to take more aggressive steps if they had persuaded him that controlling the pandemic would actually boost the economy over a several-month period and thus benefit him politically. That didn't happen, however, in part because, as the Washington Post reported, "[c]onservatives close to Trump and numerous administration officials [were] circulating" Epstein's article playing "down the extent of the spread and the threat."

Epstein cannot be blamed for all of the deaths and long-term illnesses that the U.S. has experienced in the last eight months. Even countries like Germany that took more aggressive measures in the spring were hit by a second wave this fall. However, Germany has experienced a per capita death rate of less than a fifth of the rate in the U.S. And some other developed countries--like Taiwan, South Korea, and Japan--have done even better. The Trump administration's insufficiently aggressive policies and Trump's active undermining of state and local public health measures are surely responsible for countless thousands of excess death and suffering in the U.S. One would think, therefore, that Epstein would regret whatever role his erroneous analysis played in contributing to all that death and suffering.

Yet so far as I have been able to determine, Epstein has made no public expression of remorse, despite continuing to maintain a public profile. Perusing Epstein's written and audio output over the last several months, one finds him stating views on all manner of questions. He can be seen denying that institutional racism is a problem in the U.S., pronouncing Trump the better choice than Biden, and then, following the election, lamenting the incoming Biden administration's plans to take climate change seriously. It's possible that buried within one of Epstein's columns or podcasts there is a mea culpa for the role he played in killing thousands of his fellow citizens, but if so, I missed it. Epstein certainly has not made any priority of a public expression of remorse.

Thursday, November 26, 2020

Giving Thanks when Thanks are Hard

 By Eric Segall

Thanksgiving has always been a special time for my family. My mother's birthday was November 22, and my parent's anniversary was November 25. My mother passed away a few years ago but my dad is still going strong at 91. Thanksgiving was our one sacred time time together when my brother and sister's families as well as mine would all get together with our parents. This is the first Thanksgiving I won't spend with my siblings and at least one of my parents in decades. Like millions of Americans we will zoom, but it will not be close to the same. Giving thanks can be hard.

Nothing in 2020 has been the same. Trump, the pandemic, George Floyd, and numerous other sad events have changed our lives dramatically. There has been a twitter saying since shortly after Trump was elected that "there is no bottom." That is true of Trump and his enablers, but not for America, and eventually the pandemic will pass and racial injustice will slowly get better. 

So even though is is hard, I'd like to say in this post what I am thankful for in addition to of course my family, friends, and colleagues. Without them, there really would be no bottom, especially my family. Lynne and my three daughters make me smile every day, and they have been amazing during these arduous 8 months or four years depending on how you count.

Wednesday, November 25, 2020

Doing One's Job Is Not A Low Bar In Times Of Crisis

by Michael C. Dorf

As Thanksgiving approaches, I want to express sincere gratitude to Republican public office holders who carried out their legal duties despite enormous pressure to participate or acquiesce in Donald Trump's scheme to end American constitutional democracy. The list is long and includes a great many people whose names are not widely known (a fact for which they are no doubt grateful). Most prominent among those whose names we do know are: Georgia Secretary of State Brad Raffensperger; Philadelphia City Commissioner Al Schmidt; Michigan Vice-Chair of the Board of State Canvassers Aaron Van Langevelde; the four Republicans on the five-member Maricopa Board of Supervisors; Federal District Judge Matthew Brann; and US Senators Susan Collins, Lisa Murkowski, Mitt Romney, and Ben Sasse. Thank you to all of them and to everyone else who put duty first.

In recent days I have seen it said that one should not be praised simply for doing one's job--that this is too low a bar. I strongly disagree. When a mob led by the US President threatens your livelihood, your life, your home, and your family, it takes enormous courage to do one's job with honesty and integrity. We rightly deem soldiers who do not flee in the face of the enemy brave, even though desertion under fire would be unlawful. Likewise here.

Tuesday, November 24, 2020

Trump Has Damaged His Followers' Ability to Make and Understand Reasoned Arguments

by Neil H. Buchanan
 
Back in June of 2016, I pointed out that Donald Trump had created an entirely argument-free version of political campaigning.  I compared Trump's type of logical error to the standard Republican type of logical error.  Although I did not at that point use these labels, it makes sense to contrast Republican illogic with Trumpian non-logic.

The difference is that Republicans typically have at least a story to tell that connects premises to conclusions.  Referring to the example of the infamous Laffer Curve, I noted that the Republican argument goes like this: "Tax cuts cause people to want to work more and businesses to expand, so the economy grows, and indeed it grows so much that total tax revenues rise despite the lower tax rates on each dollar in that expanded tax base."  Could be true.  Not true, at all, as proved again and again and again; but could be true.  They are being illogical because they insist on repeating the story notwithstanding its having been debunked.  It is, in Paul Krugman's memorable description, a zombie idea.
 
In contrast, Trump says things like this: "We're going to have a tremendous new health care plan that will cover everyone and be much cheaper."

That non-logic is not testable or subject to logical investigation, because there is nothing to test and verify -- except to note that the magical plan never materializes, as a matter of empirical observation.  And speaking of reality, Trump also became famous for saying things that are demonstrably untrue even in the moment, refusing to retract or correct even when called on his detachment from reality.
 
From claiming to have signed laws that were passed before he took office to falsely claiming that the Dominion voting machines company is owned or influenced by the Radical Left (which is who, exactly?), Trump simply says that up is down and night is day.  Those infamous alternative facts, after all, were not limited to crowd size but even included lies about the weather.

Now, we are seeing how Trump's huckster-inspired strategy of skipping past logic and evidence, and simply choosing to live in a reality-resistant "It's true because I say so" universe, has affected his followers.  Every day it becomes more and more ridiculous, and more and more dangerous.

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.