Wednesday, April 14, 2021
Manchin Channels Chamberlain: Will We Have Peace in Our Time in the Senate?
Tuesday, April 13, 2021
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.
Monday, April 12, 2021
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.
Friday, April 09, 2021
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.
Thursday, April 08, 2021
Would Americans Object If Billionaires (Partially) Paid for Social Security?
Wednesday, April 07, 2021
If Only Mitch McConnell Could Show Joe Manchin How to Foil Mitch McConnell
Tuesday, April 06, 2021
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.
Monday, April 05, 2021
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.
Friday, April 02, 2021
How Do We Defeat Demagogues?
Thursday, April 01, 2021
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?
Wednesday, March 31, 2021
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.
Tuesday, March 30, 2021
Why Do Super-Elite Universities Produce So Many Awful Politicians?
"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."
Monday, March 29, 2021
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?
Friday, March 26, 2021
The Perversely Fascinating Ted Cruz (It's Not About Cancun)
Thursday, March 25, 2021
(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.
Wednesday, March 24, 2021
Voter Fraud, Voter Suppression, and Attacks on Stacey Abrams: Weird Bothsideism
Tuesday, March 23, 2021
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.
Monday, March 22, 2021
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.
Friday, March 19, 2021
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.
Thursday, March 18, 2021
Democrats' Voting Reform Proposals Must Be Enacted, but Even That Might Not Be Enough
Wednesday, March 17, 2021
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.
Tuesday, March 16, 2021
The Heroes of the Vaccine Miracle are the Scientists, not the Politicians (Least of All Trump)
Monday, March 15, 2021
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.
Friday, March 12, 2021
Taking Credit Where It Is Not at All Due: Vaccines
Thursday, March 11, 2021
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?
Wednesday, March 10, 2021
Save the States: How Should the Federal Government "Help" Struggling State and Local Governments?
Monday, March 08, 2021
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.
Friday, March 05, 2021
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.
Thursday, March 04, 2021
Cuomo, Tanden, and Other Embarrassing Allies
Wednesday, March 03, 2021
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.
Tuesday, March 02, 2021
I’ll Defend California’s Politics Over Texas’s Any Day
Sunday, February 28, 2021
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.
Friday, February 26, 2021
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.
Thursday, February 25, 2021
Trump's Crimes, and What to Do About Them
Wednesday, February 24, 2021
Texas Energy Policy and the Incoherence of the Efficiency Concept
Tuesday, February 23, 2021
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.
Monday, February 22, 2021
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?