Manchin Channels Chamberlain: Will We Have Peace in Our Time in the Senate?

by Neil H. Buchanan

Last week, I laid out a plan to give Senator Joe Manchin some wiggle room regarding the filibuster, which he had defended up to that point with varying degrees of fervor.  The unremarkable premise of my column was that politicians who say, "I will never do X," can still do X at a later date, relying on any number of cover stories.  My specific suggestion was that Manchin could pull a trick play from Mitch McConnell's book and -- just as McConnell had done during the debt ceiling debacles during the Obama years -- vote to suspend and then reinstate the filibuster.  "See, I didn't vote to eliminate it, or even change it.  It still exists!"

At about the same time that I hit "Publish" on that column, The Washington Post was finalizing an op-ed written by Manchin, which they ran under the headline: "Joe Manchin: I will not vote to eliminate or weaken the filibuster."  It turns out that I am more of a cockeyed optimist than I knew, because my first thought was: "Hmmm, 'eliminate or weaken,' eh?  Well, that's easy enough.  He could support plenty of changes in the filibuster -- flip the present-to-vote requirements, change the supermajority threshold, expand reconciliation beyond budgetary matters, and so on -- and call it 'strengthening' the filibuster.  No problem."

Upon reading the piece, however, it became depressingly clear that Manchin is not at all interested in setting up escape hatches.  He is, by all evidence, fully convinced that his duty in life is to protect the filibuster as it currently exists -- which means in a form that has only been around for a few decades, and that has been further adjusted several times along the way -- and he thinks that this is the height of patriotism.

Indeed, Manchin even disparaged the reconciliation process, by which a very limited number of budgetary bills can pass with a simple majority vote.  To read Manchin's words, it appears that he might not even vote under current rules for those bills -- even if he favors them on the merits -- because he thinks that the current rules are too democratic.

 

It is true that the late Senator John McCain once waxed poetic about returning to "regular order" in the Senate, only to turn around almost immediately and vote for the Republicans' disastrous stroke-the-rich tax bill in December 2017, which had been rushed through without even a committee hearing or mark-up.  Maybe Manchin will do the same, but I have doubts.  What is happening?

Biden's SCOTUS Commission Apparently Lacks Authority To Make Recommendations And Is (Way) Too Large

 by Michael C. Dorf

Last week, President Biden fulfilled a campaign promise to create a commission to investigate possible reforms of the Supreme Court. In today's post, I'll offer a few thoughts about the commission. As I read the Executive Order establishing the commission, there is no authority to make recommendations. The EO tasks the commission with soliciting public input, meeting, and producing a report that summarizes the background, history, and current debate over various reform proposals, presumably including but not specifically mentioning Court expansion.

The one provision of the EO that comes closest to authorizing a recommendation requires that the report contain "[a]n analysis of the principal arguments in the contemporary public debate for and against Supreme Court reform, including an appraisal of the merits and legality of particular reform proposals." I suppose that the commission could read that authorization expansively, treating "analysis" and "appraisal" as the equivalent of "recommendation," but that is not usually how commissions work.

Politicians who want recommendations know how to ask for them. Thus, Congress appropriated over a million dollars for the Iraq Study Group, which eventually produced a report with 79 concrete and detailed recommendations. If President Biden were really interested in recommendations for legislation or other action, he could have asked for them more directly.

To be sure, with Senator Manchin having ruled filibuster reform off the table, no dramatic recommendation could be enacted anyway. Court expansion would require legislation. Term limits for Justices would require at least legislation and possibly a constitutional amendment. Neither would happen in the current Congress.

It is thus tempting to dismiss the commission as a pointless charade. In the balance of this post, I shall succumb to that temptation, but with an important caveat.

The Roberts Court, First Amendment Fanaticism, and the Myth of Originalism

 By Eric Segall

I’m probably the most aggressive defender of the First Amendment. Most people might think that doesn’t quite fit with my jurisprudence in other areas.… People need to know that we’re not doing politics. We’re doing something different. We’re applying the law.

                                                                                            Chief Justice John Roberts

John Roberts became the Chief  Justice of the United States Supreme Court on September 29, 2005. This term will make the 15th anniversary of the Roberts Court. During that time some important constitutional doctrines stayed more or less the same (abortion and affirmative action) and others changed dramatically (the Spending Power,  the Second Amendment and voting rights). But by a large margin, the Roberts Court generally and the Chief personally have taken the first amendment's free speech clause and turned it into an aggressive tool to impose the Court's conservative values on the rest of us. As discussed below, the numbers are staggering and the consequences for our country immense. And virtually all of it has nothing at all to do with the original meaning of the United States Constitution.

Why Second-Degree Murder is the Maximum Charge for Derek Chauvin--and Some Thoughts on the Broader Issue of Gaps Between the Law and Public Understandings

 by Michael C. Dorf

Someone who is not a lawyer (but is super smart and very well educated) recently asked me why Derek Chauvin wasn't charged with first-degree murder, given the evidence that has been thus far presented making pretty clear to most observers (including both the questioner and me) that Chauvin intended an act--placing and keeping his knee on George Floyd's neck/throat--that he knew would likely lead to Floyd's death. Even if Chauvin did not originally intend to kill Floyd and even if he did not know at the outset that the course of action on which he was embarking would lead to Floyd's death, as the encounter progressed it would likely have come to Chauvin's attention that Floyd was in grave danger, and yet Chauvin persisted. Or at least so it seems a jury could reasonably conclude beyond a reasonable doubt that Chauvin acted with the kind of intent or knowledge sufficient to prove intentional murder.

And indeed, Chauvin does stand accused of intentional murder. It's just that under Minnesota law, intentional murder as such is considered second-degree murder. Minnesota defines first-degree murder as intentional murder that is also pre-meditated. (There are some other circumstances that can turn what would otherwise be second-degree murder into first-degree murder, but none are relevant here). A few minutes of research reveals the following explanation in the Minnesota cases (quotation marks and citations omitted):

A finding of premeditation does not require proof of extensive planning or preparation to kill, nor does it require any specific period of time for deliberation. The state, however, must prove that before the commission of the act but after the defendant formed the intent to kill some appreciable time passed during which the defendant considered, planned, or prepared to commit the act.

Based on that definition/explanation, it appears that the prosecutors in the Chauvin case made the right call to charge the defendant with second but not first-degree murder. My interest here is in the gap between the legislative classification and the public understanding, both with respect to the Minnesota murder laws and more broadly. My tentative view is that, other things being equal, the law ought to reflect common-sense intuitions.

Would Americans Object If Billionaires (Partially) Paid for Social Security?

by Neil H. Buchanan

Today, I thought I might take a short break from despairing about the Republicans' apparently unstoppable efforts to end constitutional democracy in the United States.  Thinking about substantive policy issues is a good palate cleanser, and I had the pleasure earlier this week of presenting some ideas about the American retirement system at the Tax Policy Workshop Series at Duke Law School (via Zoom, unfortunately).  The convenors, Professors Rich Schmalbeck and Larry Zelenak, were gracious hosts, and their twelve seminar students were engaged and offered thoughtful comments and questions.

One series of questions from the students has inspired me to write down a few thoughts about the nature of political buy-in for government programs.  In what some pundits are calling a breakthrough moment in the U.S., voters are at long last rejecting Ronald "government is not the solution to the problem; government is the problem" Reagan's toxic legacy in favor of President Biden's purportedly FDR-esque New New Deal.  Republicans are no longer spending political capital on efforts to privatize Social Security or even to repeal the Affordable Care Act (much less Medicare).  Can we now make positive changes to those programs in a way that maintains or even expands the public's buy-in?

In my first sentence above, I wrote that this column will be a vacation from worrying about the death of the American republic.  That means that the analysis here will proceed under the assumption that something resembling the normal political rules will continue to operate in the future.  In particular, that means assuming that wildly unpopular things will not be politically viable and that both parties will try to pursue at least arguably vote-getting policies.

 

Admittedly, even before the 2020 election and its nihilistic aftermath, Republicans spent years pursuing extremely unpopular policies (their flat-out rejection of even the most minimal gun control measures being the most obvious).  And now?  Yikes.  I thus concede up front that there will be something of a quaint air to this column, as I describe how to achieve widespread political support for a particular policy agenda.  Call me retro.

If Only Mitch McConnell Could Show Joe Manchin How to Foil Mitch McConnell

by Neil H. Buchanan

Although Republicans in 2021 have taken "performative politics" into uncharted territory (just ask Mr. Potato Head), politics has always been in large part about form and not substance.  The point is arguably best illustrated with an extreme counterexample.

 

In 2009-10, the Obama Administration committed what in hindsight looks like political malpractice by giving everyone a tax cut but designing it specifically so that it would be all but invisible.  Why?  Some convincing economic research suggested that many people are likely to save big chunks of a tax cut, whereas the entire point of the Obama stimulus plan was to get people to spend.  We did not want people saying, "Oh, I'm getting $300 from the government, so I'll stick that in the bank for a rainy day," or "I'll use it to pay off some debts."  Instead, the maximum impact would come from having a few extra dollars show up in every paycheck, which people would then spend without even thinking about it, goosing the economy.  The same logic further suggested that Obama could not brag about the money that he was adding to paychecks, because that would tip people off to the virtuous ruse.  Good economics, bad politics.

Often, politicians want to vote against bills that they actually favor (or vice versa).  Prior to the bloody political battles over the debt ceiling from 2011-16, for example, a smattering of politicians would often put on a big show of voting against occasional (and completely necessary) increases in the statutory debt limit.  Senator Barack Obama himself once did so, accompanied by an operatic denunciation of the (nonexistent) evils of the national debt.  Obama knew full well that the increase would pass, but he also knew that he (an obscure Freshman in the U.S. Senate) could get some press by promoting himself as a deficit scold.

Sometimes, people paint themselves into a corner, repeating again and again something like, say, "Read my lips.  No new taxes!"  Unlike George H.W. Bush, however, most politicians apparently believe that a foolish consistency is the path to political success.  What do we do when a politician makes a very public commitment to a foolish position and would be embarrassed to be seen as a flip-flopper?  Enter Senator Joe Manchin.

GOP Obstructionism's Tragic Results

 by Michael C. Dorf

The For the People Act (H.R. 1)--a bill that would expand voting rights, curtail various state-level measures to disenfranchise minority and urban voters, restrict partisan gerrymandering, reform campaign finance, and more--passed the House of Representatives last month without a single Republican vote of "yea." Its fate in the Senate looks dubious, because unlike the American Rescue Plan Act that Congress passed last month, HR1 is not a budget measure that can be accomplished via the Reconciliation procedure--which requires only a simple majority to end debate. HR1 would need to garner support for ending debate from at least ten Republican Senators, which is not going to happen, or would need all fifty Democrats to change the cloture rule in some way. I'll have more to say about the filibuster in the coming weeks and months, but today I want to explore an especially pernicious effect of the unified Republican opposition to popular spending measures. To get there, I'll start with the calculations on the Democratic side.

Race, Caste, and the Myth of American Exceptionalism

 By Eric Segall

Isabel Wilkerson’s book Caste: The Origins of our Discontent, has made a huge impact on the study of race in America. When it was published in 2020, the New York Times gushed that it was an “instant American classic and almost certainly the keynote nonfiction book of the American century thus far.” Most other reviewers agreed.

Wilkerson compares American slavery and Jim Crow to India’s Caste system as well as the Nazis’ treatment of the Jews. Although the comparisons are far from perfect, the analogies still reveal important truths about America both yesterday and today.

The book’s greatest strength is its beautiful prose describing almost unimaginable evil. Wilkerson’s descriptions of India and Germany are dramatic enough, but the stories she recounts of American slavery, lynching, segregation, and even modern-day caste (read racial) prejudice are brutal. Wilkerson’s fluid, conversational, storytelling is simply mesmerizing.

But there is much more to Caste than the horrific recounting of terrible treatments by the “dominant caste” of the “subordinate caste.”  Wilkerson wants the reader to understand Americans’ historic and present-day racism in the context of what she thinks is a more accurate and broader idea, caste, which she defines as follows:

A caste system is an artificial construction, a fixed and embedded ranking of human value that sets the presumed supremacy of one group against the presumed inferiority of other groups on the basis of ancestry and often immutable traits, traits that would be neutral in the abstract but are ascribed life-and-death meaning in a hierarchy favoring the dominant caste whose forebears designed it. A caste system uses rigid, often arbitrary boundaries to keep the ranked groupings apart, distinct from one another and in their assigned place.

Wilkerson goes out of her way to distinguish naked racism from the all-too present desire among the dominant caste to subjugate other people. This is a controversial argument but not the subject of this essay. Instead, I want to focus on the parts of the book describing and accounting for pure American evil. More than anything else, Caste should demolish the myth of American exceptionalism.

How Do We Defeat Demagogues?

by Neil H. Buchanan

Demagoguery is hardly a new problem.  Even so, it waxes and wanes in different places at different times, and the political right in the United States is now in the midst of a full-on embrace of the worst excesses of demagogic hate-mongering.  Can it be defeated?  Not completely, of course, but it should be possible to minimize its damage and send it back into hibernation.

I hope that that is true, in any case.  The problem with demagogues is not merely that they can convince surprising numbers of people to believe harmful nonsense in order to win votes.  The worst kinds of demagogues parlay their initial success by abusing their power in ways that will make them immune to future challenges.  Some demagogues are so popular that the public largely supports their efforts to subvert the political system.  Even they, however, are risk-averse enough to lock down the system to protect themselves from any changes in public sentiment -- not only the possibility of a truly democratic uprising but also the emergence of a rival with even stronger demagogic skills.

Donald Trump is one of the class of demagogues who are never popular with a majority of the people.  Even so, someone in his position knows that if he can stay in power long enough to break the system, being unpopular will no longer matter.

My main purpose today, however, is not to analyze the staying power of demagogues but to note two different styles of demagoguery.  Surprisingly, it turns out that Trump is in some ways the less interesting (but also the less common) of the two.  This inquiry is inspired by a comment on last Friday's Dorf on Law column, where I discussed Ted Cruz's peculiar form of demagoguery.  A reader asked: "This blog post was fascinating. But I have to ask: Now that you have diagnosed Cruz ('style debater'), is there a treatment or cure?"  Good question.

 

Testiness at the First Annual Conference on Originalismism

 by Michael C. Dorf

Yesterday I "attended" and moderated a panel at a fascinating Zoom-based conference hosted by the three law schools with the closest connection to originalism in constitutional interpretation: Georgetown Law Center, the Antonin Scalia Law School at George Mason University, and the University of San Diego School of Law. Because the focus of the conference was the study of originalism rather than originalism itself, the conference was titled "Launching Originalismism." As co-conveners Professors Randy Barnett, Michael Rappaport, and Ilya Somin wrote on the conference homepage:

For many years, constitutional scholars debated whether to give dispositive weight to the Constitution's original meaning. That debate is over. Originalism won. The question has now shifted to how to do so, which is a question about the boundaries of originalism. This first-of-its-kind conference brings together originalist scholars of all stripes, as well as a few stubborn holdouts, to begin the study of originalism itself--in an effort to understand originalism. If originalism is the view that the Constitution's original public meaning was and remains fixed, our topic today is meta: We ask questions that are not within but about originalism. In so doing, we declare ourselves engaged in originalismism. 

Regular readers of this blog will not be surprised to learn that I am what the organizers describe above as a stubborn holdout. Accordingly, the panel I moderated was called Originalismism for Nonoriginalists and Nonoriginalismismists. It featured Professors Mitchell Berman (who presented a paper titled Originalismism Doesn't Even Rise to the Level of Bunk), Cheryl Harris (whose paper Originalismism's Original Original Sin explored the problematic roots of the problematic roots of originalismism), and Jack Balkin (whose book-length paper, Originalism and Originalismism are Dead; Long Live Originalismismism, argued that for any conception originalism-n, where n is the number of "isms," originalism-n+1 can be mapped isomorphically onto originalism-n). Our panel was terrific, but in the balance of today's column I want to focus on the day's first panel, Why Originalismism?

Religious Exceptions and the Deformation of the First Amendment

 by Michael C. Dorf

My latest Verdict column critiques Sidney Powell's motion to dismiss the defamation lawsuit filed against her by Dominion Voting Systems. Some of the news coverage of Powell's motion has suggested that she is making the argument that her statements about the election being stolen from Donald Trump were so transparently ludicrous that no reasonable person could have believed them. That's not far off, although it's not exactly accurate either. As I explain, the motion to dismiss makes contact with reality in a few places, but it should ultimately fail. If political speech can ever be defamatory--and the SCOTUS cases indicate that it clearly can be in at least some cicrucmstances--Powell's post-election attacks on Dominion should trigger liability.

During the course of my column, I note the irony that both Trump himself--through his suggestion that we "open up" defamation law--and right-wing ideologues--like Judge Silberman, whose call to overrule NY Times v. Sullivan I recently discussed--are in favor of greater liability for defamation, while Powell's motion to dismiss would nearly shut down such liability. Some readers will likely have a more cynical reaction; the juxtaposition is not simply ironic but hypocritical, they will think. I have no current interest in pushing back against that view.

Instead, I want to use the balance of today's essay to discuss another current flashpoint involving the First Amendment--about how to treat religiously motivated claimants seeking exceptions from general rules. For this topic, I'll take as my point of departure last week's Sixth Circuit ruling in Meriwether v. Hartop, which permits a First Amendment lawsuit by a professor at a state university who refused to call a trans student by her preferred pronouns.

Why Do Super-Elite Universities Produce So Many Awful Politicians?

by Neil H. Buchanan

Last Friday, I offered some observations about the pro-insurrectionist Senator Ted Cruz, drawing lessons from the one major life experience that he and I have in common: competitive college-level parliamentary debating.  I will not expand here on what I wrote in that column, but I want to use my two writing slots this week (today and Friday) to pick up on some issues that were raised on the comment board for that column.  In a pointed -- but refreshingly trolling-free -- discussion, three of our readers raised a number of interesting points.  Here, I want to take a stab at answering one reader's provocative question:

"Whenever I think of a Cruz, a Hawley, a Franken, or some other Ivy alumni, I want to find someone to tell me just what those universities think their academic missions are. To create comedy writers? Hedge fund managers? Elected officials? Or just to reproduce more of themselves? Whatever the weaknesses of the noblesse oblige of an Elihu Root, or Franklin Roosevelt, or a Henry Stimson, it seems to me less bad than the naked ambition and relentlessness that seem now to be the primary qualifications for admission."

I concede in advance that I am not a scholar of higher education or of its most selective and elite variants.  It is possible for people who have never gone to an elite institution to offer deep insights and trenchant critiques, just as the late sportscaster Howard Cosell admitted that he "never played the game" but was a keen observer of the world of sport.  My role here, to extend the analogy, is like a jock who had some success playing the game and who has direct experience with a lot of the people and institutions involved, but ultimately mine are still subjective and not deeply researched observations.

Having so stipulated, I want to suggest that the reader's query in the quote above ultimately leads to another one of those "it's the worst, except for all of the alternatives" defenses.  That is, American elite educational institutions do a lot of damage and have a lot to answer for, but the way it is now is better than what came before.  There might be better options, but I will limit myself here to comparing the new status quo with what it replaced.

Government Purchases of Sensitive Private Data

By Matthew Tokson

Carpenter v. United States held that the government must get a warrant before collecting an individual’s cellphone location data. Such data would allow the government to constantly track citizens, revealing their activities, associations, relationships, purchases, and countless other details about their lives. But what if the government can just purchase similar data from a private vendor? Does the Fourth Amendment regulate government purchases, or has the government found a valid way around Carpenter’s restrictions?

These are important and very new questions, and they've begun to attract a lot of scholarly attention. They arise because several government law enforcement agencies have purchased private location data from data brokers in the wake of Carpenter. The Department of Homeland Security, the IRS’s Criminal Investigations Division, the Defense Intelligence Agency, and several other federal and local law enforcement agencies have purchased location data drawn from cellphone apps for various law enforcement purposes. 

Lawyers at these agencies have argued that the purchase of such data does not implicate the Fourth Amendment, in part because Carpenter only directly addressed cell-site location data, not app-based location data. Further, app-based location data is sometimes collected with user permission and is often available for purchase in aggregate form by non-government entities. If a private corporation can purchase it, they say, the government should be able to purchase it too. On the other hand, a Treasury Department watchdog report casts doubt on this conclusion, stating that future courts may conclude that Carpenter precludes government purchases of app-based data. What is the law here?

The Perversely Fascinating Ted Cruz (It's Not About Cancun)

by Neil H. Buchanan

For someone possessing whatever is the opposite of charisma (repellency, maybe?), Ted Cruz has made it very far in life.  Cruz, moreover, has succeeded not in one of the areas in which being a jerk can be a positive, which is what allows Martin Shkrelli or Elon Musk or Roseanne Barr to enjoy at least temporary success.  No, he actually has somehow convinced millions of people to vote for him on multiple occasions.

That is not, of course, as uncommon as I made it seem just now.  There are plenty of politicians of national stature who are simply awful personally, from former Democratic congressman Barney Frank and still-Governor-for-now of New York Andrew Cuomo to Senator Rand Paul or the late Senator Strom Thurmond.  For as long as there have been parties, and especially in current Republican politics, winning general elections is not the real game.  All Cruz had to do was work behind the scenes to grab his party's nomination and, in a state like Texas, he was all but guaranteed to win and to keep winning.  And when it comes to the presidential stage, no one comes close to Donald Trump for treating people -- with special focus on women, people of color, and especially women of color -- like crap.  Of course, he lost the popular vote.  By a lot.  Twice.

Yet somehow, Cruz manages to rise to the top of the a--hole rankings, again and again.  Earlier this week, for example, he started to speak at a makeshift press conference, and he was not wearing a mask at the indoor event.  A reporter asked: "Do you mind putting a mask on for us?"  Cruz: "Yeah, when I'm talking to the TV camera, I'm not going to wear a mask. All of us have been immunized."  Note that "us" is the four (masked) senators standing behind Cruz, not the reporters.  Reporter: "It'd make us feel better."  Cruz: "You're welcome to step away, if you'd like."

 

So Cruz tells a working stiff to choose between doing his job or being potentially exposed to a deadly virus.  Cruz feels safe, so everyone else is on their own.  Way to own the libs!

My special fascination with Cruz, however, extends beyond his notorious ability to get people to hate him.  (The erratic Lindsey Graham once said, in essence, that all 99 of Cruz's U.S. Senate colleagues would be happy if someone killed the Texas senator.)  As both Professor Dorf and I have noted in passing a few times (e.g., here, here, and here), Cruz's principal undergraduate extracurricular activity was parliamentary debating, with which both of us also have some familiarity.

As I have been watching Cruz's increasingly extreme performative and content-free politics over the last few years, I have found myself thinking again and again about how his experiences on the debate circuit all those years ago seem obviously to have shaped the political black hole that he has now become.  What is going on with this guy?

(At Least) Nine Conceptions of Common Law in One Takings Case

 by Michael C. Dorf

Monday's SCOTUS oral argument in Cedar Point Nursery v. Hasid implicated a bewildering array of conceptions of the common law of property. In today's essay, I hope to shed some light on what's at stake. I offer a few normative points, but my chief goals are analytic.

Here's how I summarized the legal conflict last fall when the Court granted cert: 

A longstanding regulation in California grants union organizers access to agricultural workers on private property. The rule allows such access for up to three hours per day for up to thirty days at a time for up to four thirty-day periods per year. Union organizers used the rule to gain access to privately owned strawberry fields and orchards growing grapes and citrus fruit. The owners of these properties complained that the access was disruptive and, more importantly for present purposes, unconstitutional. They claimed that the state, by empowering the labor organizers to gain access to their property, had affected an unreasonable seizure in violation of the Fourth Amendment and/or a taking without just compensation in violation of the Fifth Amendment. The property owners lost in the Ninth Circuit and then successfully sought review in the SCOTUS with respect to the takings claim.

The dispute in the Supreme Court is mostly over how to categorize the California regulation. When government simply exercises its power of eminent domain to take title to property, it clearly owes just compensation. The more complicated cases involve exercises of government power that limit the property owner's rights without taking title. To oversimplify a bit, a regulation is a taking if it (a) goes "too far"; (b) amounts to a permanent physical invasion; or (c) destroys all economically viable use of the land.

Category (a), which originates with an opinion by Justice Oliver Wendell Holmes, Jr. 99 years ago, is most closely associated today with the Penn Central case. In this category, courts balance the burden on the property owner against the government's regulatory interest. Few regulations amount to takings under the Penn Central test or later refinements of it. Categories (b) and (c), by contrast, adopt per se rules. Cedar Point does not plausibly implicate category (c), because labor organizer access to farm property leaves the value of that property substantially intact. The legal battle involves whether the California regulation is a physical invasion--category (b) and most closely associated with the Loretto case--or something short of a physical invasion that thus relegates the property-owners/petitioners to relying on the Penn Central balancing test.

The case seems like something of a sport, because during the oral argument it appeared that a majority--perhaps even all--of the justices thought that the property owners should win even under the balancing test. Nonetheless, the property owners' attorney insisted that the Court should apply the per se rule. The stakes of that choice may be low for the parties here (given that the property owners will likely win either way), but potentially high in other contexts.

Voter Fraud, Voter Suppression, and Attacks on Stacey Abrams: Weird Bothsideism

by Neil H. Buchanan

One of the practitioners of the dark side of public opinion polling is Frank Luntz, who has for a long time been many reporters' go-to source as a "Republicans pollster."  Luntz is most famous within the small group of people who pay attention to these things as the inventor of the term "death tax" as a substitute for the estate tax.  Does it matter that the estate tax is not a death tax, or that there is no such thing as a death tax, or that even if there were such thing as a death tax (and if the estate tax were an example of it), it would actually be worse if wealth were taxable at any time other than death?

Not according to Luntz, who once summed up his basic approach with disturbing candor: "A compelling story, even if factually inaccurate, can be more emotionally compelling than a dry recitation of the truth."  His oeuvre includes the usual run of Republican political correctness, from referring to the "Democrat Party" to calling environmental rules "Washington regulations."  If Orwellian DNA had been injected into the place where Mitch McConnell's heart should be, something like Luntz would have emerged.

 

More recently, Luntz has been trying to pretend to be nonpartisan, or at least trying to understand Trumpian partisanship.  After a recent set of focus groups and polling, Luntz reported that Republicans believe that the biggest problem facing the political system is voter fraud, with about 60 percent citing that non-problem and only about 20 percent citing voter suppression.  Democrats were the mirror opposite, with about 60 percent citing voter suppression and 20 percent voter fraud.  The remaining 20 percent were presumably "other" or "no answer."

But here is where Luntz cannot hide his true colors.  He claimed that both sides are wrong.  Why?  Republicans are wrong because there is no evidence of anything beyond the most minimal and inconsequential voting irregularities.  Democrats?  Why, golly gosh, they too are wrong, because the 2020 election had historically high turnout.  See?  No voter suppression!

This is pernicious in the extreme, not just on its own terms but also as a connection to the Republicans' lie that Stacey Abrams, one of the most famous victims of blatant voter suppression, never gave a concession speech -- just like Trump!  Both sides are equally to blame for political warfare.  Q.E.D.  Really?

Judge Silberman Laments Reality's Liberal Bias

 by Michael C. Dorf

Dissenting in Tah v. Global Witness Publishing last week, Senior DC Circuit Judge Laurence Silberman mostly disagreed with the way in which his colleagues applied New York Times v. Sullivan in favor of the defendant Global Witness--a human rights organization that was sued for defamation by two Liberian officials based on the defendant's publication of a report falsely implying that they had accepted bribes. The majority concluded that the plaintiffs' complaint did not allege facts sufficient to meet the "actual malice" standard that NYT v. Sullivan requires public officials to satisfy. Judge Silberman disagreed. Not content to explain why he thought the complaint ought not to have been dismissed, Judge Silberman also took the opportunity to say that he thought NYT v. Sullivan was wrongly decided and ought to be overruled. That portion of his dissent is, to put it politely, odd.

In a forthcoming Point/Counterpoint exchange with Berkeley Law Professor Orin Kerr in the journal Judicature, I'll argue that there's nothing inherently inappropriate about a lower court judge writing an opinion, concurrence, or dissent that criticizes Supreme Court precedent. Whereas Professor Kerr thinks lower court judges ought to restrict such criticisms to other fora (such as law review articles), I'll contend that occasionally it makes sense to call for the overruling of a precedent in the very case in which the judge must apply that precedent. I think that lower court judges calling for SCOTUS overruling of binding precedent is especially apt where the application of such precedent leads to unjust or otherwise unwise results.

But that's not what Judge Silberman did in Tah. He did not think that, as a matter of first principle or the best reading of the Constitution, the plaintiffs should win but reluctantly conclude that NYT v. Sullivan required him to rule for the defendant. On the contrary, he thought his colleagues had misapplied NYT v. Sullivan. Thus, his call for its overruling was gratuitous.

The call was also redundant. As Judge Silberman himself noted, Justice Thomas already has called for the overruling of NYT v. Sullivan, and for mostly the same reasons that Judge Silberman offers. That said, Judge Silberman's characterization of Justice Thomas's argument as "persuasive" is tendentious; "hypocritical" or "disingenuous" seems like a better characterization, given that Justice Thomas and Judge Silberman both criticize NYT v. Sullivan as a judge-made departure from the original understanding of the First Amendment but are perfectly fine with right-wing departures from the original understanding of the First Amendment, like those busting unions and invalidating campaign finance regulation (as I noted here).

In one respect, Judge Silberman goes (way) beyond what Justice Thomas wrote in his call for the overruling of NYT v. Sullivan. Judge Silberman argues that the press is pervasively biased in favor of Democrats and against Republicans and that for that reason it oughtn't to receive First Amendment protection against defamation liability.

The Racist Roots of Originalism

 By Eric Segall

In an important new article in the American Political Science Review (behind a pay wall), Calvin TerBeek has uncovered substantial data to suggest that what we think of as modern originalism was motivated first and foremost by political and legal opposition to Brown v. Board of Education. Today's judges who self-identify as originalists will likely ignore this scholarship but originalist academics should not. They need to explain how a contemporary movement born in the racism of the 1950's and 1960's has evolved beyond that racism. At the end of this post, I'll offer a few tentative thoughts on race and originalism today.  

The Role of Fungibility in the Spending Clause Challenge to Restrictions on State Aid in the American Rescue Plan Act

 by Michael C. Dorf

Section 9901 of the American Rescue Plan Act of 2021 appropriates approximately $220 billion to state, local, territorial, and tribal governments. Most of those funds (over $195 billion) go to states, raising the question whether the conditions placed on how states use those funds are constitutional. Because of a highly dubious precedent of the Supreme Court, there is a substantial possibility that a key condition could be invalidated. Here I'll explain why one of the arguments for the invalidity of the condition is especially bad.

Democrats' Voting Reform Proposals Must Be Enacted, but Even That Might Not Be Enough

by Neil H. Buchanan

 

This week, Senate Democrats officially proposed their version of the For the People Act, which has already passed the House as H.R. 1.  That bill would substantially de-fang the two anti-democracy strategies that Republicans have been abusing for years: gerrymandering and voter suppression.  In 2021, both of those strategies are already being pushed even further by Republicans, as they plan to take away even more House seats when adopting legislative maps in response to the 2020 census, and as Republicans in state legislatures across the country advance an onslaught of voter suppression laws.

There are many moving parts in the Republicans' long-running strategy to disenfranchise non-Republican voters, one of which was Donald Trump's extensive, bare-knuckled effort to rig the census.  Running through the full list of Republican affronts to representative government would be both too time-consuming and beside my point here.

 

Nonetheless, it is worth bearing in mind that the Republicans have been absolutely shameless and relentless in pursuing their overall strategy, including voter purges (which were later blessed by the Supreme Court's movement conservatives), Texas's extreme limitation on voter drop boxes in 2020 (which, oh by the way, were imposed by that state's governor and approved by its supreme court, with no input by the state legislature), and on and on.  There has never been anything particularly subtle about any of this, and some Republicans now openly defend their actions as being necessary to remain competitive in elections, while others now readily admit that they think that some votes (that is, voters) are of higher "quality" than others.

This is an epic struggle, the outcome of which will determine whether we continue to enjoy even the hobbled form of democracy that has survived Republicans' attacks until now.  Or will it?  Is it possible that the die is already cast, that the Democrats and representative democracy itself are irreversibly doomed?  It would be sad if the answer to that question were even "possibly."  Unfortunately, it is worse, because the answer is "probably."

 

That is, although we are fortunate that Trump's 2020 defeat was not reversed by politicians or insurrectionists, it is hard to see how this will last -- even if Democrats do everything that they could possibly do right now.

Are the American Rescue Plan Act's Debt Cancellation Payments to "Socially Disadvantaged" Farmers and Ranchers Unconstitutional?

 by Michael C. Dorf

My latest Verdict column considers and rebuts the main critiques that Republicans have offered to justify their opposition to the $1.9 trillion American Rescue Plan Act of 2021 (American Rescue). I argue that while everyone can find something objectionable in a large omnibus measure, the overall arguments are misguided. The law is needed despite the stock market boom, because of the uneven distribution of the recovery; it is unlikely to cause runaway inflation; most of the money does indeed target pandemic-related problems, but there is in any event, no obligation for Congress to address only one problem in any law; and although there will undoubtedly be some waste, fraud, and abuse, effective implementation of various safeguards can keep those to tolerable limits.

In this column, I want to consider one of the Republican objections to some specific provisions that I do not discuss in the Verdict column: its reliance on racial and ethnic categories for distributing some aid to framers and ranchers. Before doing so, I should clarify the question I'm asking in the title of this column. In asking whether the provisions are unconstitutional, I do not mean to ask whether they are unconstitutional under the all-things-considered-best reading of the U.S. Constitution (in particular, the so-called equal protection component of the Fifth Amendment's Due Process Clause). If it were up to me, I would implement the Constitution's equal protection guarantees in a way that gives legislatures substantial leeway to use racial and ethnic classifications to remedy what the Supreme Court has sometimes dismissively called "societal discrimination" (and what might better be termed "centuries of systemic racism"). Put differently, I agree with my co-blogger, Prof Segall, in what he wrote in his excellent two-part series criticizing the Court's affirmative action jurisprudence (Part 1 here; Part 2 here). However, for today's column, I am asking more of a doctrinal than a normative question: If faced with a challenge to the relevant provisions, how will our quite conservative judiciary apply the current precedents?

Before diving in, I shall add one further preliminary: I worried a little about writing the following for fear of providing conservative lawyers a roadmap for challenging what I regard as valid and socially beneficial legislation. I overcame that worry because I believe that my analysis below would be sufficiently obvious to any number of competent conservative attorneys that I am not giving anyone ideas. Indeed, although much of the public discussion of the provisions (both pro and con) has addressed the question whether they count as reparations, already Pennsylvania Senator Pat Toomey has asserted that they are unconstitutional.

Are they? For those interested in the bottom line: There is a path to upholding the key provisions under existing precedent, but I cannot predict with certainty that the current judges and justices of the federal judiciary will follow that path. Now onto the analysis.

The Heroes of the Vaccine Miracle are the Scientists, not the Politicians (Least of All Trump)

by Neil H. Buchanan

A first dose of the Pfizer vaccine entered my arm at 9am today.  This is exciting, and I look forward to more and more people being fully vaccinated over the next few months.  Sooner is better, of course.  I do worry that people are taking the mere existence of the vaccines as an excuse to go back to normal too quickly, but having the vaccines is clearly better than not having them.

Having written a column just this past week about Donald Trump's absurd attempts to take credit for the existence of the anti-COVID vaccines, I want to add some thoughts here not only about the politics in play but about the underlying science as well.

Bottom line: The case for Trump-as-vaccine-savior is even weaker than it seemed, which is saying a lot.  Why?  Because science.  (And by the way, scientific research has been dismissed and chronically underfunded by Trump, Republicans, and even some Democrats).

Should Lady Justice be Blind to Identity When Judges Are Selected? A Response to Professor McGinnis

 By Eric Segall

At the Law and Liberty Website last Thursday, Professor John McGinnis of Northwestern University posted an essay about the relationship between judicial nominations, identity, and Lady Justice. McGinnis seems quite troubled by President Biden's pledge to appoint more diverse judges to the federal bench and the "left's obsession" with "representativeness." There is a lot wrong with this essay, which covers numerous broad topics relating to judging but in the interests of time and space I will just point out a few of the more outrageous claims in McGinnis' post.

Taking Credit Where It Is Not at All Due: Vaccines

by Neil H. Buchanan

If we learned nothing else from Donald Trump's four excruciating years occupying the White House, it is that he refuses to own anything bad and tries to take credit for everything good.  As is so often the case with Trump, this is both "what all politicians do" and not at all like that.  In a world of shameless self-promoters, he stands alone in his insistence on saying with a straight face that he alone can fix things -- and that it is everyone else's fault when he fails to do so.

The latest example of this is Trump's Tweet-substitute statement insisting that he receive all of the credit for the existence of COVID vaccines.  Perhaps the best headline on this story was from The Independent: "Trump issues statement trying to take credit for 'China virus' vaccine: 'I hope everyone remembers.'"  (Of course he uses a racist framing.  Because Trump.)  The sub-headline helpfully adds: "Ex-president claimed that if it was not for him Americans may not have got shots for five years – if ever."

Of course, this is not new.  (And I will fight the urge to discuss Trump's years of feeding the anti-vaxxer insanity.)  As I discussed in a Dorf on Law column shortly after Trump lost the 2020 election, Trump even then was making the deranged claim that "[i]f you had a different administration with different people, what we’ve done would have taken, in my opinion, three, four, five years, and it would have been in the FDA forever."  (The link to that statement has disappeared from WhiteHouse.gov.)

 

In some ways, there is not much new to say here, but because this is a Friday, and because Trump and the Republicans will surely be pushing this line for the next three, four, five years, or maybe forever, it seems worth writing down a few responses to this claim.  Bottom line: Trump deserves exactly zero credit for the existence of the lifesaving -- indeed, life-changing -- vaccines.

 

The "Revival" Alternative to Test Legislation Like the New Arkansas Abortion Ban

 by Michael C. Dorf

A new law passed by the Arkansas legislature and signed by Governor Hutchinson banning nearly all abortions clearly violates governing Supreme Court precedent. Indeed, that is its point. Hutchinson and other pro-life politicians in Arkansas expect that lower courts will enjoin the law's enforcement but that they will then have the opportunity to seek review in the US Supreme Court, which, they hope, will use the case as the opportunity to fully overturn Roe v. Wade, rather than merely scale back that precedent's scope, as in other SCOTUS abortion cases over the last three-plus decades.

Is it legitimate for a legislature to pass and a governor to sign legislation that they know to be unconstitutional under existing precedents? That is not exactly a new question. I addressed it in a 2006 column, when South Dakota did more or less what Arkansas is doing now. As I observed then, if there is a reasonable prospect that the Court would change the precedent, then enacting legislation with the goal of teeing up a test case seems fair. I expressed doubts about the likelihood of the Court sustaining the near-total South Dakota ban in 2006--because Justice Kennedy would have provided a fifth vote to retain at least the core of Roe--but things may be different today. Chief Justice Roberts voted with the liberals last Term to invalidate a Louisiana measure identical to one from Texas that the Court had recently invalidated, but he did not commit to sustaining Roe against a frontal assault, and even if he had, following Justice Ginsburg's death and Justice Barrett's appointment, there may well be five votes to discard Roe completely, even if the Chief would not choose to do so.

I do not wish to use today's column to discuss whether the Court should retain a constitutional right to abortion, although I believe it should. Rather, I want to question a premise of my 2006 column and of the legislatures that enact new legislation to test existing precedent. Why do that? Why not simply try to enforce old laws that were unconstitutional under the old regime but could be valid under a new one?

Save the States: How Should the Federal Government "Help" Struggling State and Local Governments?

by Neil H. Buchanan 

 

One of the best bits of below-the-radar news recently is that the COVID relief bill contains $350 billion in direct aid for state and local governments.  That bill is not a law yet, but it should soon pass the House and make its way to the Rose Garden for a signing ceremony later this week.  The one-time $1400 checks and extended unemployment benefits have received most of the attention -- along with what was not in the final bill: a minimum wage increase -- and rightly so, but the sub-federal aid was an essential part of the package.

 

And the news is even better for state and local governments, because the bill also includes money to support local capital projects that would otherwise have been cut.  Moreover, with the Biden-led federal government now actually taking on pandemic-related responsibilities that had fallen to ill-funded states and cities under the Trump Administration's denialist approach, those governments will simultaneously receive direct funds and be relieved from continuing to make expenditures that they could not afford.  Add in the general economic boom that the bill will ignite, and state and local comptrollers everywhere must be feeling something other than panic for the first time in a year.

Am I -- from my perspective as an employee of a state government -- viewing this too parochially?  That cannot be right, because I hold the same views now about state/local finance that I did during the decades in which I worked at private universities; so this is hardly a foxhole conversion.  The fact is that states and cities are in need of aid, and the Democrats are finally giving it to them.

But what is the "right" approach to what econo-nerds call fiscal federalism?  Should the federal government be giving the states and cities any money at all?  If so, how should it determine the amounts to go to each state?  What is fair?

 

Old-School Intentions-and-Expectations Originalism in the Nominal Damages Case

 by Michael C. Dorf

Earlier today, in Uzuegbunam v. Preczewski, the Supreme Court ruled 8-1 to permit legal standing and against the argument that the plaintiffs' claim was moot. The plaintiffs were students at a state college that allegedly violated their First Amendment rights by pretty severely restricting where they could hand out religious literature or even discuss their religious views. But the college repealed the speech-restrictive policy and the plaintiffs had not sought compensatory or punitive damages. They had, however, sought "nominal damages," meaning some token amount of money--typically a single dollar--in recognition that their rights were violated. The question before SCOTUS was whether that request satisfied the constitutional requirement for standing. Under the Court's precedents, to establish standing, a plaintiff must allege (1) injury that is (2) traceable to the defendant's conduct, and (3) redressable by a favorable judgment. As Justice Thomas, who wrote for the majority, explained, there was no question that the plaintiffs satisfied (1) and (2). The issue was whether nominal damages redress an injury. The majority said yes. Chief Justice Roberts, in a lone dissent, thought the answer should be no.

The case leaves open an important question. In his dissent, Roberts says that to mitigate a potential floodgates problem, in future cases a defendant sued only for nominal damages can make the case go away by offering to settle for the nominal amount. He points to Federal Rule of Civil Procedure 68, which allows a defendant to offer a settlement amount and dare the plaintiff not to take it, lest the plaintiff be on the hook for costs that accrue after the settlement offer. Justice Kavanaugh, who joins the Thomas majority opinion, says in a brief concurrence that he nonetheless agrees with the Chief that a defendant sued only for nominal damages can accept the entry of judgment against it and moot the case.

I agree with CJ Roberts and Justice Kavanaugh that the majority opinion is open to the reading they offer, but it is at least a little odd that Justice Thomas doesn't even mention the possibility. Moreover, in stating that nominal damages cases were a kind of early version of the more modern declaratory judgment action, Justice Thomas arguably implies that perhaps a voluntary entry of judgment against the defendant does not redress a plaintiff's wrong as well as actual proof followed by nominal damages--and could thus be rejected. Accordingly, the practical significance of Uzuegbunam remains to be seen.

I won't venture a view as to who has the better of the argument about redress. Instead, I want to focus on the methodology that both the majority and dissent employ: old-school intentions and expectations originalism.

Institutional Racism, Affirmative Action, and Judicial Hubris: Part II

 By Eric Segall

Last Wednesday on this blog, I wrote about the efforts by Students for Fair Admissions (SFAA) to persuade the Supreme Court to rule that colleges and universities nationwide may not use race at all in their admissions decisions. SFAA is seeking review in the Supreme Court of the First Circuit's decision that Harvard University's admissions program does not unlawfully discriminate on account of race. Although the governing law pertaining to the use of race in university admissions stems from two decisions handed down the same day in 2003, both of those opinions effectively embraced Justice Powell's lone opinion in Regents of the University of California v. Bakke, the first Supreme Court case on the subject.

In Part I of this series, I detailed how Justice Powell applied strict scrutiny to all classifications based on race, even those designed to foster racial equality. He also rejected all of the asserted compelling interests--except the school's desire for educational diversity--advanced by UC Davis to justify its quota of 16 seats out of 100 for its entering medical school class. Powell's rejection of UC Davis' broader interests in combating generations of society-wide discrimination and wanting more people of color to join the medical profession has been affirmed by later Supreme Court cases and has resulted in much harm to the goal of reducing institutional racism. 

In this post, I will show how Powell's discussion of the narrowly tailoring prong of the strict scrutiny test has led directly to harmful judicial overreaching as well as incoherent legal doctrines in subsequent affirmative action cases. Should this conservative Court take the Harvard case, it will almost certainly make the use of racial classifications by universities even more difficult, or perhaps illegal completely, and that would be a grave mistake, greatly compounding the errors made by Justice Powell in Bakke. There will be time enough to discuss that problem if the Court grants the petition for the writ of certiorari. For now, it is important to understand where Powell went grievously wrong.

A Preliminary and Barely Data-Based Observation About SCOTUS Polarization

by Michael C. Dorf

Yesterday the Supreme Court handed down two opinions that divided the Court on ideological grounds (although Justice Kagan joined the Republican appointees in one of them). The cases involved immigration--which is often ideologically divisive--and the Freedom of Information Act--which sometimes is. My interest here is not so much in the merits of either case as it is on the evidence for increased polarization that they supply.

Justice Breyer authored the principal dissent in each of yesterday's cases. That's striking. Justice Breyer is not a frequent dissent-writer. The notion that he would write two dissents in one day in two relatively-low-temperature cases suggests something is up. That something, I would suggest, is increased polarization.

Consider (based on data available here) that in the Supreme Court terms from Justice Kagan's addition through Justice Kennedy's retirement, Justice Breyer dissented in, respectively 5, 5, 4, 4, and 3, or an average of just over four cases per Term. By that standard, two in a single day early in the Term is quite a lot. But it's not such an outlier when gauged against the more recent numbers. Since Justice Kennedy's retirement, we see dissents in 6, 7, 10, and 7 cases per Term, for an average of a little over seven cases per Term.

Now in one obvious sense, this is not evidence of increased polarization. Rather, as the Court moved right, Justice Breyer moved from the Court's center-left to its left. Without Justice Kennedy occasionally joining to form a liberal majority in a divisive case, Justice Breyer found himself more frequently in dissent and thus more frequently writing dissents. The trend should accelerate with Justice Barrett's having filled the vacancy created by Justice Ginsburg's death.

I acknowledge that mere median-shifting accounts for much or perhaps all of the increasing frequency of Breyer dissents, but I want to suggest another possibility: Perhaps he has given up on a certain kind of centrism.

Cuomo, Tanden, and Other Embarrassing Allies

by Neil H. Buchanan 

 

The political wheel of fortune has again put Democrats in a position where they have had to decide whether to stand by a few of their compatriots who are difficult to defend, or instead to jettison excess baggage and move on.  After weeks of backing his nomination of Neera Tanden to be his budget director, President Biden ultimately decided that she was not worth the fight.  Meanwhile, whether New York Governor Andrew Cuomo will survive his emerging scandals is currently impossible to predict.

 

Every political scandal is different, of course, yet there is a sameness to the genre.  Even so, there continues to be an enormous difference between the way that Democrats handle their embarrassing colleagues and the way that Republicans bulldoze through their much worse situations.  Are there any lessons here?

Institutional Racism, Affirmative Action, and Judicial Hubris: Part I

 By Eric Segall

The pernicious and negative consequences of centuries of slavery, segregation, and formalized legal racial discrimination are still all around us. As I detailed here, institutional racism pervades our schools, police forces, governmental institutions, neighborhoods, and even our private markets. In my lifetime, just a few blocks from the law school where I teach, a hotel went to the Supreme Court arguing for the right to discriminate against people of color despite a federal statute prohibiting the same. Today, GOP legislatures in well over half the states are trying to deter people of color from voting. Just yesterday, the Court heard oral arguments in such a case. 

Against this backdrop of racism, educational institutions across the country now take account of race when selecting their incoming classes in order to achieve greater educational diversity that benefits people of all races. At the same time, a group called Students for Fair Admissions (SFAA) has been filing lawsuits attempting to prohibit public and private universities from taking race into account at all in their admissions decisions. These suits have challenged the use of affirmative action under the 14th Amendment's Equal Protection Clause as well as a federal statute (Title VI) that bars institutions receiving federal funds (virtually all colleges and universities) from  discriminating on the basis of race.

The Supreme Court will soon have to decide whether it will hear a lawsuit brought by SFAA against Harvard University seeking to end all use of race in university admissions. SFAA lost in the courts below, and last week filed a petition for certiorari seeking to have the Supreme Court reverse those decisions. This case is different from any the Court has heard before because SFAA is alleging racial discrimination against Asians, a traditionally disadvantaged group. But make no mistake, the effects of a ruling that racial considerations are off limits to admissions committees would seriously hurt Blacks and Hispanics and set back the efforts being made by universities nationwide to redress centuries of discrimination against all people of color. SFAA is surely thinking it will find a receptive audience among the six conservative Justices.

I’ll Defend California’s Politics Over Texas’s Any Day

by Neil H. Buchanan

If nothing else, New York Governor Andrew Cuomo's downward spiral should remind everyone that state-level politics can be messy.  As Virginians discovered a few years ago, when the governor, lieutenant governor, and attorney general simultaneously faced assorted scandals, people who look good one day can look bad the next (and sometimes bounce back again later, although I would not bet on that outcome for Cuomo).

Beyond personal scandals, the deeper political structures and cultures in the various states present a different set of questions.  It is not as though states cannot change.  For decades, Maryland was accurately reputed to have an insanely corrupt state government, most famously including former Governor Spiro Agnew's crime-a-palooza that ultimately ended his stint as Richard Nixon's first Vice President.  That reputation no longer fits Maryland today, although there are surely still many problems there.  Illinois has witnessed extensive political problems as well, but there is no guarantee at this point that reforms will take hold there to move it in the right direction.

The two most populous states in the nation present us with a unique comparison.  California has for the past few years solidified its position as the bluest of blue states, whereas Texas -- which has been ruled forever by a deeply conservative political class (first under Southern Democrats, then under converts to the other side like former Senator Phil Gramm, and now under the Trumpiest of Republicans) -- has been the ever-elusive "just about to turn purple and then blue" fantasy of those of us who view demographics as destiny.  Even if Texas ultimately flips, for now its government at all levels is still firmly in the grip of some of the most reactionary conservatives in the United States.

As things currently stand, then, California is run by Democrats and Texas is run by Republicans.  Given that both states have unsolved problems, should we conclude that neither party is capable of solving problems?  No, not at all.  In California, Democrats are trying to solve problems, whereas in Texas, Republicans are denying that problems even exist while doubling down on their own disastrous political agenda.

Federal Judge's Invalidation of the Eviction Moratorium Threatens the Fair Housing Act and More

 by Michael C. Dorf

When I read the headline that a federal district judge had struck down the CDC eviction moratorium, I assumed that the ruling said the moratorium went beyond the authority Congress had delegated to the CDC. I was mistaken. According to the actual ruling of Judge J. Campbell Barker in Terkel v. CDC, even Congress itself lacks the power under the Commerce Clause to enact the moratorium that the CDC adopted by rule.

That decision is not just wrong but potentially dangerously so. As I explain below, its logic threatens federal civil rights legislation. I conclude this essay with a proposal for Congress to circumvent the immediate danger from the moratorium's invalidation. Unfortunately, I do not have a solution to the broader threat to congressional power. 

Rawls at 100: Three Critiques

 by Michael C. Dorf

In an important essay earlier this week, Prof Lawrence Solum marked the occasion of the one hundredth anniversary of the birth of John Rawls and the impending fiftieth anniversary of Rawls's landmark book A Theory of Justice. Prof Solum focuses on the ongoing influence of Rawls, both through his students and otherwise. I recommend it to readers, who might also be interested in an essay I wrote in memory of Rawls on the occasion of his death.

Both Prof Solum and I include some personal recollections. My essay noted that as a student I was lucky enough to study with Rawls--from whom I took a large lecture class on moral and political philosophy, with a heavy focus on the usual suspects: Locke, Hume, Kant, Bentham, Mill, Marx, and then, as I recall, skipping over nearly a century to get to Rawls himself. Rawls was very much interested in counter-arguments, but he did not specifically consider what was then (in the early-to-mid-1980s) widely regarded as the leading challenge to his approach--Robert Nozick's libertarianism as set forth in Anarchy, State, and Utopia. Nozick was a substantially less rigid and more subtle libertarian than the likes of Ayn Rand, and precisely for that reason, any fair-minded attempt to respond to libertarian objections to Rawls's defense of the liberal welfare state should target Nozick's watchman state.

Rawls and those who followed in his footsteps offered responses to the core argument of Anarchy, State, and Utopia, but it's important to understand that even if one thinks those arguments were not successful, it hardly matters for defeating what passes for libertarianism in public debate. On the ground, the sorts of actors who purport to be inspired by libertarian thought either really are relying on Ayn Rand (think of the now-moderate-seeming-by-comparison-to-Trumpers former House Speaker Paul Ryan) or simply using libertarianism as a veneer for crony capitalism (think of Republican elected officials in Texas). Meanwhile, although a fair number of principled libertarians stood against Trump and Trumpism, it is clear that they are no longer a dominant force on the right. The libertarian critique of Rawls remains theoretically significant but not especially significant as a practical matter.

Let us turn then to two other critiques. Each critique can be understood as objecting to the seeming bloodlessness of A Theory of Justice--its claiming to speak from the viewpoint of nowhere, as it were.

Trump's Crimes, and What to Do About Them

by Neil H. Buchanan

 

Donald Trump left office without pardoning himself, surprising many people -- certainly including me.  Or did he actually pardon himself without telling anyone about it (yet)?  Trump's former lawyer Michael Cohen suggested as much shortly after President Biden's inauguration.  Whatever else one thinks about Cohen, he certainly was spot-on when he testified two years ago that Trump would not leave office peacefully.

 

Being right about one thing, however, does not make Cohen a seer.  Did Trump issue a secret "pocket pardon"?  Maybe, but if he did try to pardon himself -- and somehow overcame all of his brazen reality-show instincts by not bragging about it and daring people to stand up to him -- we will not learn about it until either Trump needs an adrenaline rush of news coverage (perhaps at his upcoming CPAC speech?) or he actually is in danger of being indicted for federal crimes and pulls the self-pardon out of his pocket.

Will any federal prosecutor actually try to prosecute Trump?  Had Trump announced a self-pardon on January 19, that would have made federal prosecution both less and more likely.  It would be less likely because any prosecutor would have to take into account the extra hassle and uncertainties of litigating the pardon question as a threshold matter.  It would be more likely, however, because it would give the Justice Department in a post-Trump world a reason to say: "No one can do this."  But as it stands today, the balancing question is between holding an unrepentant serial offender to account and avoiding an inevitably controversial prosecution at a politically volatile time.

That will not be an easy decision, but in the end, federal prosecutors should pursue every case against Trump and his associates that they can win on the merits.  Why is that so clearly the right approach?

Texas Energy Policy and the Incoherence of the Efficiency Concept

by Neil H. Buchanan

At this point, it appears that most homes and businesses in Texas have at long last had their electric power restored.  If any are still without service, they are in the second week of living in 18th Century conditions, which millions upon millions of Texans experienced for many days last week.  And even now, houses with electric power restored do not have running water, with plumbers working day and night to work through waiting lists that run into the thousands (per plumber).

In a column last week, I noted how quickly life becomes truly elemental when the foundations of modern living disappear.  Being thrust into a feral life is jarring, and humans understandably have psychological safety mechanisms that allow us to forget very quickly how awful things felt while we were waiting for normal life to return.  And as I pointed out, even when a power outage is relatively short, the temptation to say that it was "only 10 hours" or "only two days" misses the fact that we cannot know during the events themselves when they will end.  It is similar to a job search that stretches on for months, and after a job offer comes in, downplaying the crippling uncertainty and depression that the person suffered.

We should, therefore, fight the temptation to minimize a crisis that lasted "only" a week or so (but which, again, is still not actually over for the people without running water).  The people in Texas's government who are to blame will do everything possible to say that the problem is solved and that we should all move on -- just as they have been saying that Trump's "only four hours and a couple of hundred people" insurrection is nothing to dwell on.

As a policy matter, however, the Texas disaster is a perfect moment to reflect on the concepts of regulation, deregulation, the so-called free market, and that ever-elusive concept called Economic Efficiency (cue the triumphant music).  I have argued for years that efficiency is a meaningless concept (see, for example, the article that Professor Dorf and I co-authored that will be published soon in Cornell Law Review), and last week's collapse in the Lone Star State is a perfect illustration of the emptiness of free-market bromides.

Yesterday Appeared to be a Bad Day for Trump and Trumpism at the Supreme Court: SCOTUS Kremlinology Part 3

by Michael C. Dorf

The big news out of the Supreme Court yesterday was the denial of the stay sought by Donald Trump in the NYC grand jury investigation into his finances and related matters. The ruling in its entirety stated: "The application for a stay presented to Justice Breyer and referred to the Court is denied." No dissents or reasons were recorded.

That's not especially unusual. The Supreme Court routinely takes summary actions without explanation. And despite understandable calls for greater transparency on the Court's so-called shadow docket, there is almost certainly some irreducible minimum of work that the Court--like any reasonably complex institution--can and should be permitted to do without giving reasons.

Indeed, we might worry about the opposite problem: In the four cases involving clashes between state public health measures and religious freedom claims since last spring, various Justices arguably said too much, and thereby changed the underlying law governing religious exceptions without full briefing and oral argument.

In any event, watching the Supreme Court is, as I have noted before (here and here) something of an exercise in attempted mind-reading or Kremlinology. For example, an article last week in USA Today quoted three scholars (including me) hypothesizing that the Court is taking a brief breather from hot-button issues in order for the new conservative supermajority to coalesce. The article is sensible, but as I wrote its author after it appeared:

all of the scholars you interviewed had the same basic reaction: seems like they’re going slowly for now/probably won’t last/we’re really just guessing at what’s going on. I might add . . . that there might not even be a there there. That is, we’re acting as though the Court has a plan and we’re trying to infer it as kremlinologists. But the Court is a "they," not an "it," so its/their actions are the vector sum of complex individual decisions that could be at cross purposes with each other.

With that gigantic caveat--that so much of what I say about the Supreme Court is really just guesswork--I'll venture a brief reaction to the financial records decision and a few observations about the Court's denial of cert in the cases from Pennsylvania challenging that state's supreme court's decisions regarding the 2020 presidential election.

Why Harvard Can't Just Give Cornel West Tenure - And Why That Shouldn't Matter

 by Diane Klein

Noted public intellectual, best-selling author, and co-chair of Bernie Sanders' presidential campaign Cornel West is threatening to leave Harvard, for a second time.  He has stated that "the administration disrespected him by denying his request to be considered for tenure."  A statement like this was crafted carefully, and it has to be read carefully.  First of all, West has not been denied tenure.  It would appear that he was turned down after requesting "to be considered for tenure."  Why would he have to make such a request? Presumably, because he holds a position that is not eligible for tenure.  Is turning him down a sign of "disrespect," as he claims?  Or did West voluntarily accept a position that was ineligible for tenure - only to complain a few years later that Harvard refused to consider him for a status that was never part of the job? And why does it make such a difference?

"Playing Politics" While Texans Freeze and Die: Nonsensical Bothsidesism Again

by Neil H. Buchanan

 

The crisis in Texas this week is causing misery on a vast scale.  People who rely on electrical devices to keep themselves alive are not able to recharge batteries.  Hospitals have been without power or water for days.  People are being forced to live in group settings with strangers during a pandemic -- where such options are even available -- simply in order to survive.  Some are sitting in sub-freezing homes, trying not to die of hypothermia.  Not all are succeeding.

My worst personal experiences with power outages have been two 3-day disruptions during winter storms, but in each case the weather dramatically improved while I was without power.  Also, because the outages were spotty and not region-wide, the only question was whether I would need to drive two towns over to get a hot meal from a restaurant.  Nonetheless, it was amazing how quickly life could change, where even sitting in a house that is 50 degrees Fahrenheit can make one feel that survival is at stake -- especially because we could only know after the fact that the outage was "only three days."  While it is happening, with no information (and in some cases, no way even to try to obtain information) about when it might end, it makes life seem very, very harsh and primitive.

 

Even people who might think that we as a society have become too spoiled and consumerist would have to concede that suddenly being deprived of the things that we take for granted is a recipe for disaster.  Yes, humans survived (with much shorter life expectancies) for centuries without central heating and running water, and even now, people go camping.  Still, suddenly putting people into survival mode, including people who are in serious danger of not surviving, should be unthinkable.

 

That means that we should rightly be angry that this crisis was the result of political blindness by the Republican Party.  But when is it okay to "be political" when responding to a crisis?  It turns out that making political arguments during a crisis can be perfectly appropriate.  What is inappropriate, however, is for news reporters to revert to meaningless talking points and both-sides-do-it accusations.  With the return to "normal" politics in the Biden era, we unfortunately see journalists lapsing back into their lazy attempts to sound objective.  This is dangerous.