Predicting the Supreme Court's Next Moves: Fourth Amendment Edition

By Matthew Tokson

Now that American politics has returned to something resembling normalcy, it's a good time to consider the future of the Supreme Court in the Biden era. Eric Segall recently previewed the direction that the Court is likely to take over the next several years. As he convincingly argues, on issues like abortion, regulation of business, civil rights, affirmative action, voting rights, and many others, the Court's rulings will likely shift from conservative to very conservative. On a theoretical note, I'd add that increasing polarization and the expanding politicization of policy issues will likely shrink the sphere of legal issues where party affiliation is irrelevant. To be sure, the recent resolution of cases like Trump v. New York suggests that the Court may exhibit meaningful restraint in adopting radical changes to existing laws or constitutional practices. But generally, the Court's strong rightward tilt will drive outcomes in most of the ever-growing proportion of cases with a strong political valence.

In the Fourth Amendment context, however, there is less polarization--and substantial ambiguity. Justices Barrett and Kavanaugh are a particular enigma here, as they've decided few or no Fourth Amendment cases since joining the Court. And Fourth Amendment search law was undergoing dramatic changes even before the Court's composition changed. In this post, I'll describe some mysteries about the future direction of Fourth Amendment law and make some evidence-based predictions about the new Justices' approaches to future cases. 

Why Are Republicans Unable to Understand the English Language? (impeachment edition)

by Neil H. Buchanan

At this point, I think Republicans have done Democrats a favor by insisting on delaying the start of the impeachment trial.  To be clear, I am talking about the second delay, which pushed the trial back from the first few days of President Biden's term to the week of February 8.  The first delay, when Mitch McConnell refused to take up the issue at all before the end of Donald Trump's term, was both dangerous (because we are simply lucky that nothing worse happened in Trump's final few days) and dishonest ("It's too soon" having been immediately followed by "It's too late!").

But as to the second delay, I think that Democrats have to be pretty happy.  Republicans are disgracing themselves once again, all the while forcing an outcome that their most fully disgraced members -- presidential pretenders all -- truly do not want but have to pretend to support.  Meanwhile, more and more evidence continues to pile up regarding Trump's culpability, even as we learn additional depressing facts about the organization and execution of the January 6 coup plot.

 

Even though the Republican caucus will almost surely not see seventeen defections, this is still good news for Democrats, from a political standpoint.  There is a point at which further delay would be more damaging than helpful, but I do not think that two weeks is anywhere near that limit, and if it were up to me, I would be fine with an additional postponement.  If, as Republicans self-fulfillingly insist, this is to be a partisan show trial with no doubt as to the outcome, it will be a better show if it includes even more evidence to put on display.

But of course, Senate Republicans -- led by Rand Paul,  the poster child for the Dunning-Kruger effect and the man who is in over his head on every issue (seriously, does he know less about economics or law, his two favorite subjects on which to issue self-important pronouncements?) -- tried and failed to prevent a trial from happening at all.  They loudly proclaimed to the world that it is unconstitutional to impeach an ex-president.  That assertion is so wrong that it is worth exploring just how crazy the Republicans' position is.  And that exploration leads inexorably to a rhetorical question: Can they not read?

 

John Kerry's Question--Past, Present, and Future

by Michael C. Dorf

Before John Kerry was climate czar, before he was the Secretary of State who brought the US to the Iran nuclear deal and the Paris Climate agreement, before he was the Democratic Presidential candidate who was unfairly attacked by the fatuously named Swift Boat Veterans for Truth, and even before he was a US Senator from Massachusetts, Kerry was a multiply decorated young naval officer serving in Vietnam. He came to national prominence nearly fifty years ago when he testified before the Senate Foreign Relations Committee. Kerry famously asked, "how do you ask a man to be the last man to die in Vietnam? How do you ask a man to be the last man to die for a mistake?"

The question was urgent then. A variation of it is urgent now--both in the ongoing battle against COVID-19 and for the at-least-equally-urgent-and-ultimately-even-higher-stakes battle with climate change that Kerry will now spearhead for the US.

The Upside of Senate Republicans’ All-but-Certain Acquittal of Donald Trump, or, What Cruz and Hawley Truly Want

by Neil H. Buchanan

 

I hereby state clearly and unequivocally up front that Donald Trump should be convicted in the upcoming Senate impeachment trial.  Whatever one might have thought about his first impeachment, or about anything else that he has done that endangered and diminished the nation, he is guilty as charged -- guilty as sin -- in the current article of impeachment.  And it matters that he be so found.

 

That being said, my focus today is on the consequences going forward of the outcome in the Senate, no matter which way it goes.  My contention is that it is unclear which outcome would be good or bad for the future interests of Republicans or Democrats, so Democrats and all others who are not in the death cult need to keep the stakes in Trump's trial in perspective.

 

That is, I can spin a story in which good things happen for Democrats even after an acquittal, and I can tell a different yarn where bad things happen to them after a conviction.  In that sense, maybe we should not care so much how this drama plays out.  It matters, but does it matter?

The Trump Era is Over: Prepare for the Supreme Court’s Conservative Onslaught

 By Eric Segall

The Trump Administration is finally over, and the Biden Administration will be able to undo some of the great damage done by its predecessor. For example, Trump’s irrational rule requiring women to purchase medical abortion pills in person, overruled by a federal judge but then reinstated by the Supreme Court, will almost certainly be reversed by Biden’s Department of Health and Human Services. There are a myriad of other executive branch decisions and regulations that Biden can, over time, reverse.

But there is one important Trump legacy the new President will not be able to change--the installing of three ultra conservative Justices who along with Chief Justice Roberts and Justices Thomas and Alito, will, absent serious Court reform, overrule important legislation for decades or more. This six-three GOP Court may be the most conservative one since before the New Deal. I detail below what to expect from the Roberts Courts in the next few years and then suggest a few desirable, but highly unlikely, fixes.

A Digression on the History of the Nazis, Legal Fig Leaves, and Lessons for the United States

by Neil H. Buchanan

In a Verdict column last week, I dissected the utter lawlessness of Republican Senator Josh Hawley's attack on the 2020 election results.  Along the way, I returned to a concept that I have called "legalistic lawlessness," which is the socially presentable alternative to openly thuggish autocracy.  In that dressed-up version, the raw power of the autocratic regime is given legal cover, which has the effect of giving people of good conscience -- especially lawyers and judges -- a way to avoid confronting their own complicity in the brutal, antidemocratic actions of the tyrant: "I'm just following the law!"

Drawing from one of the two or three most notorious historical examples of a murderous national government taking refuge behind the cover of its own unjust laws, I wrote:

"[I]t feels a lot better to judges and legislators to say that what they are doing is legitimate. The Nazis passed laws that made the Holocaust not merely legal but mandatory. In the United States, in addition to the fully legal institution of slavery, we have had legal regimes that justified or ignored lynchings, literacy tests, forced sterilizations, and more."

As good luck would have it, one of Verdict's frequent readers is a retired German jurist who has contacted me in the past about my writings.  Born in the mid-1930's, this gentleman is unfailingly pleasant and deeply engaged with ideas.  In response to my comment about the Nazi regime, he contacted me with a friendly correction, which I found so fascinating that I want to reproduce it here:

Post-Trump Republicans as the Post-Stalin Politburo: Autocracy Without the Cult of Personality

by Neil H. Buchanan

 

Today is the day on which I published the Verdict column that I feared I might never be able to write, acknowledging that my longstanding prediction that Donald Trump would never leave the White House turned out to be wrong.  Gloriously, wonderfully wrong.  Nothing that I have written over the last four-plus years was at all implausible, and on many days a horrible outcome seemed all but a lock.  History took a different turn, however, and that is good for the future of humanity.

Predicting that Trump and the Republicans would steal the 2020 election and then install what would effectively be a dictatorship (while maintaining the false trappings of democracy) was not my only mistaken prediction, of course.  I also wrote, for example, that Trump would both try to pardon himself and resign a day early to get Mike Pence to pardon him as an insurance policy.

 

Because of the last, deadly gasp of Trumpism's ugliest manifestations on January 6, however, Trump apparently decided that it would be worse for him to try to pardon himself, and he did not trust Pence to pardon him, either.  No one could have predicted that turn of events, however, so that was a matter of Trump overplaying his losing hand and finally facing some of the consequences of doing so.

Readers of today's Verdict column will find, however, that I am anything but optimistic about the nearly-immediate future of American constitutionalism.  Although I have long tied my predictions of the end of true democracy and the rule of law to the toxic presence of Trump, I argue in that new column that Trump has inadvertently pointed the way for Republicans to complete an anti-democratic coup in the very near future.

The question is, what would such a violation of our most basic political commitments look like?  Does it require Trump or someone like him to lead the way into the darkness?

Free Speech, Due Process, and Other Constitutional Limits in Senate Impeachment Trials

by Michael C. Dorf 

[**Updated to acknowledge two articles I neglected to cite in the initial version:]

After four years that felt like four lifetimes and a post-election eleven weeks that felt like eleven years, Inauguration Day is finally here. My new Verdict column addresses one of the challenges that will now confront President Biden and other rational Americans: the fact that so many people believe in dangerous nonsense. I suggest that the reasons for such beliefs are pretty deeply rooted in human psychology. The political power of conspiracy theorists and the craven politicians who do their bidding might not derail the Biden legislative agenda, but the conspiracy-theory-believing Americans themselves will make it harder to accomplish some of the urgent tasks that require public buy-in.

Now I want to shift gears and discuss the upcoming Trump Senate impeachment trial--which is being described by some as another potential obstacle to the Biden agenda, if for no other reason than that it will distract the Senate from other business. I believe that particular obstacle can and should be overcome by expeditious scheduling by soon-to-be-Majority Leader Schumer. That said, interesting constitutional questions await in the Senate impeachment trial.

In a recent essay, I offered three reasons why the free-speech defense suggested by some commentators should not avail Trump in his Senate impeachment trial: (1) Non-criminal conduct can be the basis for impeachment, so it does not matter whether Trump's speech at the January 6 rally preceding the storming of the Capitol and the course of conduct that led up to it amounted to a crime; (2) Trump's goal in fomenting violence may have been to create a pretext for martial law and the delay or cancellation of Biden's inauguration, which would be a separate ground for impeachment; and (3) in any event, Trump did commit the crime of incitement of violence, which, applying the Brandenburg test, was not shielded by the First Amendment.

In response to my prior essay, a colleague asked me an interesting set of questions about the relation between (1) and (3). Granting that non-criminal conduct can be the basis for impeachment, the colleague asked, is the fact (or not) of First Amendment protection irrelevant to impeachability? More broadly, to what extent, if any, do constitutional rights apply in a Senate impeachment trial? I'll address both of those questions, along with some further wrinkles involving the 1993 SCOTUS decision in the Judge Walter Nixon Case, which forecloses judicial review of impeachment procedures.

What Law School Couldn't Do For Josh Hawley and Ted Cruz

By Diane Klein

The addition of mandatory legal ethics instruction in ABA-accredited law schools is one of the lasting legacies of Watergate. Recent events at the Capitol (and if we're honest, throughout the Trump Administration) demonstrate conclusively that this reform was a complete failure. If that sounds like an overstatement, we might do well to ask why it was ever imagined that instruction in professional ethics would somehow infuse law students with the civic virtue of respect for the rule of law, or somehow prevent them from turning out to be the sort of bad people who countenance or even encourage lying and violence in order to achieve their personal or political ends. No two-unit course in law school (even coupled with a 60-question multiple choice test) could ever do that - as has been known since at least the time of Aristotle.

Rudy Giuliani's (Ridiculous) "True Enough" Defense of Trump

by Michael C. Dorf

Dr. Martin Luther King, Jr., was born on January 15, 1929. Today is the official annual day of recognition of his birth. In past years, I have sometimes posted MLK Day essays on a theme related to Dr. King's life and work. I considered doing so today. Following a year that saw both massive protests for racial justice and political violence that included expressly racist symbols and language, there would certainly be no shortage of material. But I find myself too unsettled in my thoughts about such matters to do so today (although what I say will touch upon race and racism in one particular). I am confident that interested readers will find no shortage of such reflections elsewhere.

Accordingly, and with apologies for the fact that doing so does not quite match the occasion, I offer some commentary on the latest nonsense to ooze forth from the brain of the man who was once "America's Mayor."

Ignoring Right-Wing Terrorism Led Us to This Dangerous Situation

by Neil H. Buchanan

This country has been downplaying and even ignoring the threat of domestic terrorism for decades.  I concede that this is a step up from the previous decades of state-sponsored racist terrorism, but looking the other way while non-state actors (and all too many state actors "going rogue") do their worst to vulnerable populations amounts to little more than outsourcing what spy novelists call the "wetwork" to private contractors.

To be sure, things did become less bad after the end of the Jim Crow era.  I do not have the statistics at hand, but I expect that they would show that the indiscriminate killing of nonwhites has gone down, hopefully precipitously.  Even so, the fundamental point of the Black Lives Matter movement, indeed the reason for the existence of the entire panoply of civil rights groups, is that we can see with our own eyes that America in the third decade of the twenty-first century still treats non-White lives too often as disposable.  What now?

Too-Clever Lawyering Is Toxic, But Hawley's Arguments are Not Even Mildly Clever

by Neil H. Buchanan

 

As a law professor and a devout believer in the peacekeeping role that a well functioning legal system can guarantee, I am especially worried when the rule of law is undermined from within.  The most common versions of this problem include lawyers abusing the legal process in nakedly cynical ways, strategies that cause people to exclaim: "That's why people hate lawyers!"

Dramatic depictions of lawyers in film and on television feed on and reinforce that kind of system-threatening erosion of confidence in the rule of law.  I recently caught up with two of the best shows on television that I had inexcusably ignored until now, "Breaking Bad" and its subsequently produced prequel, "Better Call Saul."  The latter show is built around a relatively minor character from the former show, Jimmy McGill, who changes his name to Saul Goodman (as in " 's all good, man!"), also known as "Slippin' Jimmy."  Lawyers do have many positive moments on those shows, but even more bad ones.

But those are merely two of the countless shows and movies, covering the full range of quality, that give people reason to suspect that the law is a big con.  And not without good reasons.  Law is too often a commodity that goes to the highest bidder.  Too many prosecutors suborn perjury, abuse the plea process, and refuse to drop cases even after exculpatory evidence has been produced and verified.  Too many divorce lawyers make matters worse for all involved.  (Another dramatic marvel: "Marriage Story.")

And by "too many" in the paragraph above, we ought to mean "any."  What happens when the system breaks?

Incitement, Imminence, and Free Speech: The Internet is a Game Changer

 By Eric Segall

There is a great tension between constitutionally protected free speech and expression that incites others to commit violence or other illegal acts. For example, pure political speech that includes heinous content such as bigotry, sexism, or general expressions of hatred towards identifiable groups has been protected in America by the Supreme Court since the 1960's, while other democracies do not tolerate such ideas. Holocaust deniers cannot be punished in America while in some European countries they can be fined and/or imprisoned for such speech. There is a general consensus here that non-targeted expressions of hate should be met with more speech, not governmental censorship. Additionally, we are allowed to speak out against our government in ways that do not include specific instructions to commit crimes or acts of violence. But where is the line between calls for dramatic change and illegal incitement or what the Court has called true threats? The tragic events of last Wednesday raise these admittedly difficult questions.

The key Supreme Court decision in the area of incitement is Brandenburg v. Ohio. In that case, the Supreme Court overturned the conviction of a Ku Klux Klan leader for making hateful comments about Blacks and Jews. Among other things, he said, “I believe the n****r should be returned to Africa, the Jew returned to Israel." He was convicted under an Ohio law that made it a crime to “advocate or teach the duty, necessity, or propriety of violence as a means of accomplishing industrial or political reform." The Court, recounting prior cases, said that in order to be punished for incitement, the speech must be “directed to inciting or producing imminent lawless action and is likely to incite or produce such action." The Ohio law didn't satisfy that standard, and the Klan leader was set free. This test, unfortunately, is still the law today.

As I detailed in a prior article, lower courts have had an enormously difficult time applying this standard to the internet. The main difficulty has been the imminence requirement. As I've previously written, the imminence requirement:

makes sense in the context of fiery speech uttered during political rallies, but it makes much less sense when applied to speech posted on the Internet where the threat can last forever and be seen by millions of people around the world. For example, there is a significant difference between a person who at a pro-life rally, yells that a particular doctor should be “stopped” if a year from now he is still performing abortions, and a person posting on the Internet the doctor’s home address and suggesting the same sentiment. The imminence requirement makes sense for the former but hardly lessens the danger of the latter. The fact of permanence, as well as the great reach of the threat, makes Internet speech more dangerous than rallying cries at political protests, and the Brandenburg test is just not flexible enough to deal with that problem.

Don't Ask Whether Trump Falsely Cried "Fire" In A Crowded Theater. Ask Whether He Tried To Start A Reichstag Fire

 by Michael C. Dorf

Among the most foolish ideas circulating right now is that Donald Trump cannot be impeached and removed for his role in fomenting an insurrection aimed at Congress because he engaged in constitutionally protected freedom of speech. The idea is foolish for at least three reasons:

(1) Conduct, including conduct accomplished through speech, need not be criminal in order to be the basis for a valid impeachment. Even Trump's apologists acknowledged as much during the hearings over Trump's first impeachment. So, if we assume arguendo that Trump cannot be criminally prosecuted for his role in inciting the insurrection, he can nonetheless be impeached, removed, and disqualified from holding office in the future based on his outrageous assault on democracy up to and through January 6.

(2) But let's be clear that this is at best an arguendo assumption. We don't yet know the full extent of Trump's role behind the scenes both before and during the assault on the Capitol. As Prof Philip Bobbitt writes persuasively, perhaps the most plausible account of Trump's conduct was that it formed part of a plot to create sufficient violence and chaos so as to give him a pretext to declare martial law and refuse to give up power. Legal scholars and other observes are asking whether he crossed the line from lawful advocacy to something like Holmes's man falsely crying "fire" in a crowded theatre. The more relevant question is whether Trump's provocation was part of an effort to create a Reichstag fire.

(3) Even taking an unduly narrow and lawyerly view of the matter, Trump did commit a crime that could be the basis for both criminal prosecution as soon as he is out of office and impeachment, removal, and disqualification now. The key precedent is Brandenburg v. Ohio, which, like the January 6 insurrection, featured white supremacists and antisemites. It states the following legal standard:

the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.

The language after "except" is a pretty good description of what Trump did on January 6.

Of Veterans, Constitutional Text, and Sovereign Immunity Run Amuck

 By Eric Segall

Disclaimer: There are serious threats facing our country and last week's events obviously should be on everyone's mind. But life does go on and this post was written before the attack on our government. There will be posts this week on that subject, but the topic of this one is extremely important, so I hope people will understand why we are posting it today. The pending cert petition discussed below needs to be granted by the Court.

***********************************************************************************

The United States Constitution expressly grants Congress the authority in Article I, Section 8 to "raise and support" the armed services. Pursuant to this enumerated power, Congress enacted the Uniformed Services Employment and  Reemployment Act ("USERRA") which, among other things, prohibits employers, including the states, from discriminating against veterans because of their military service. 

Although this statute is easily within Congress' authority under its power to raise and support the military, and although Article VI unambiguously makes federal law supreme, "anything in the Constitution or laws of any State to the contrary notwithstanding," a Texas appellate court ruled that the law was unconstitutional because of state sovereign immunity, and the Texas Supreme Court refused to hear the case. This decision is not only grossly unfair to veterans across the land, but is completely inconsistent with the Constitution's text and history. The blame, however, lies not with the Texas courts but with the United States Supreme Court.  

There is No Constitutional Right of Armed Assembly

 by Michael C. Dorf

In October 2020, I participated in a terrific all-day conference on the Second Amendment sponsored by the Duke Center for Firearms Law. Papers by the panelists will be published in the Northwestern University Law Review. With final versions due to the journal's editors this week, I recently put the finishing touches on my draft. The timing was fortuitous because an advance copy of my draft became available this week. My paper bears the title When Two Rights Make a Wrong: Armed Assembly Under the First and Second Amendments. It went live on SSRN (where you can download it) on the afternoon of Wednesday January 6, just as a mob of Trump-incited seditionists were attacking the U.S. Capitol.

As terrible as the January 6 insurrection was, it could have been much much worse. Capitol police responded to the mob with tear gas and, in one fatal incident, live fire. Although many people have understandably asked why police did not respond with greater force--especially given the more aggressive tactics used against Black Lives Matter demonstrators last summer--it is hardly clear that more force would have quelled the seditious Trumpsters, at least some of whom were heavily armed.

One can only imagine what might have unfolded if Wednesday's confrontation had occurred in, say, the Michigan Statehouse, where anti-government protesters were legally permitted to carry firearms last spring. Perhaps we should count ourselves lucky that the mob was cleared in hours rather than resulting in an armed standoff requiring days or weeks and much more bloodshed to end. The District's strict firearms laws and its high-profile arrest earlier in the week of Proud Boys leader Enrique Tarrio on property destruction and weapons charges may have deterred many of Trump's shock troops from bringing and/or using firearms.

But wait. What about the constitutional rights of the mob? Is there a right of private citizens to take firearms into the Capitol building? Thankfully, the Supreme Court's ruling in District of Columbia v. Heller makes clear that the answer is no. Justice Scalia wrote there that the Second Amendment does not invalidate "laws forbidding the carrying of firearms in sensitive places such as schools and government buildings."

The January 6th Insurrection

by Neil H. Buchanan

 

The United States, I have suggested more than once, is quite possibly a "dead democracy walking."  After returning to that metaphor in a column barely more than a month ago, I wrote: "If we are too far gone to prevent the worst from happening -- if the end is only a matter of time -- then the best we can do is to prepare for what is inevitable.  The beginning of such preparation is a clear-eyed assessment of where things stand, understanding why it seems certain that things will still turn out badly."

 

To try to put this in personal terms (and to steer the metaphor away from its original use to describe the victims of state-sponsored death), imagine receiving the devastating news that you have contracted a deadly disease and have only a short time left to live.  Thankfully, I have thus far never been confronted with anything even remotely along those lines.  I can imagine, however, that no matter how much one tries to anticipate what the process will be like when the pain and breakdown ultimately become unmistakable, the actual experience of symptoms would still come as a shock.  The vestiges of denial and hope on which one relies for solace begin to flicker.

 

Yesterday felt like that, as I watched the news from Washington.

By now, it has become a cliche to predict the worst and then say, "I hope I'm wrong."  The sentiment is a good one, but as far back as the early Obama years nutcases like Glenn Beck (remember him?) were predicting that our first Black president would lead a fascist/communist/Muslim/socialist takeover, only to turn to the camera and say with wide-eyed mock innocence: "I hope I'm wrong."  As I sit and think about yesterday's terrifying events at the United States Capitol building, I certainly am not tempted to say, "See, I was right all along!"  I am saying not only that I wanted to be wrong but that even though something like this has long seemed inevitable, seeing it happening was still a shock.

My thoughts are too jumbled right now to allow me to pen a longer piece, so I will point to two of my Dorf on Law columns that seem especially relevant.

The first, which I have already republished as a Dorf on Law "classic" over the recent holidays, is titled "There Will Be (More) Blood," originally published on October 20, 2020.  It includes this:

"Most importantly, the biggest story continues to be that Trump simply cannot stop encouraging his most extreme supporters to be ready to support him with violence.  Blood has already been shed because of Trump this year.  Shockingly but not at all shockingly, he seems to want more blood to flow."

"The second article, published four years earlier to the day (October 20, 2016), is titled "Donald Trump, Insurrectionist."  Discussing the third presidential non-debate before that fateful election, I wrote:

"Donald Trump announced at the debate that he will not accept the results of the presidential election, unless he wins.

"If that is not a plan to foment insurrection, I do not know what is.  This is not the kind of thing that one says lightly, but it is chillingly accurate.

 

...

 

"Trump has now announced to the world that his losing will prove that the election is rigged against him.  He will thus arrogate to himself the right to say that he did not lose fair and square.  If you are not scared, you should be."

Perhaps yesterday's events -- a riot incited by the man who is still somehow President of the United States -- will change history in a good way, somehow purging our body politic of the disease that has been killing us for these long, depressing years.  I hope so.  The Trump mob did not achieve its goal yesterday, and that is good.  Maybe this will break the fever, but even if it does, we have a long path to recovery ahead of us, and success is by no means guaranteed.

 

Peace.

Trump Exceptionalism Versus Trump As Truth Serum Revisited: Trump As Infection

 by Michael C. Dorf

In the heat of the 2016 general election for President, I considered two tactics that Democrats might pursue. One--which I labeled "Trump exceptionalism"--would treat Trump as an aberration and repudiation of American values shared by Republicans, Democrats, and Independents. This approach aimed to expand the group of what have come to be known as never-Trump Republicans. It held out the possibility of defeating Trump while it risked strengthening the hand of down-ballot Republicans who could appeal to their traditional base without associating themselves with the racism and other ugliness Trump embodied.

The other approach--which I labeled "Trump as truth serum"--drew on longstanding racist patterns of GOP voter suppression and dog-whistle politics to argue that Trump was simply a cruder version of what Republicans have stood for at least since Nixon's Southern Strategy. Trump as truth serum was the equivalent of a saying I recently read from a fortune cookie: A drunk man's words are a sober man's thoughts. Trump as truth serum held out the hope of using Trump to discredit not only the execrable man himself but the party he was bidding to lead.

My main concern in the 2016 column was tactical: how to portray Trump. But I was also interested in the underlying factual question of whether Trump was the repudiation or the culmination of Republican politics. Obviously, the answer need not be either/or. In some respects Trump marks a break with prior GOP politics, and in other respects he is its continuation.

In the 50+ months since I wrote my initial column, I have come to think that I neglected a third possibility--that Trump is an infection. If, in the fall of 2016, the GOP was X% Trumpy and thus (100-X)% non-Trumpy, after the Trump infection has had over four years to spread, the Republican Party is now (X+𝚫)% Trumpy and (100-X-𝚫)% non-Trumpy. We can debate the exact size of the delta, but it seems to me undeniable that its sign is positive and its magnitude is substantial.

The madness that will unfold in Congress today--in which a majority of Republican House members and a substantial number of Republican Senators will refuse to certify the winner of the Electoral College vote based on baseless and racist allegations of voter fraud--confirms as much. Had Trump lost in 2016 but baselessly claimed then, as he does now, that he really won, it is hard to imagine that the likes of Ted Cruz would have been rallying to defend him, rather than blaming Trump for losing an election that a generic Republican would have won.

While I sincerely hope that Reverend Warnock's victory and Mr. Ossoff's likely victory will cause many Republicans to sour on Trump, we are not there yet. Indeed, showing that she intends her brief political career to end in a blaze of Trumpian shame, Senator Loeffler has yet to concede. Like our nation suffering the worst effects of COVID-19 even as vaccines offer hope at long last, so today we will see a terrible manifestation of the Trumpian disease even as Georgia is on the verge of inoculating the body politic. Indeed, in both contexts, the infection will spread before it comes under control.

The $2000 Relief Payments Are Imperfectly Targeted, but We Can Live With That

by Neil H. Buchanan

Remember when the big political story was whether the Senate would authorize an increase in relief payments from $600 to $2000 per person?  That is, do you remember what life was like literally only a few days ago?  Not remembering that now-dead story can be forgiven, because we are all back to being terrified about the treasonous actions of Donald Trump and his parasites.  If we do indeed remain a semi-functioning constitutional democracy going forward, however, the fight over the relief payments will matter very much in our upcoming policy debates.

This column, then, is an expression of optimism.  We might soon, I dearly hope, be back to arguing about legitimate differences over policy matters.  More interestingly, we might soon be back to waging an important intramural fight among non-Trumpers over the future of neoliberalism -- the incremental, technocratic, intellectually defensive approach to economic policy that is somehow both appealing and disastrous -- and its uncomfortable tension with progressivism.  Let us discuss.

Originalism, Technology, and the Confrontation Right in the Time of Covid

by Matthew Tokson

While procedures vary from state to state, the COVID-19 pandemic has substantially delayed criminal trials throughout the country. Plea bargaining has become even more prevalent than before. And the pandemic has put defendants' constitutional rights in tension with each other, as the right to a speedy trial has come into conflict with the right to a jury trial and the right to confront witnesses. 

This latter right is based in the Confrontation Clause of the Sixth Amendment, which provides that "In all criminal prosecutions, the accused shall enjoy the right...to be confronted with the witnesses against him." The constitutionality of video testimony has come up before, but the pandemic has made this issue particularly important. The prevailing view is that, in most situations, video testimony violates the Confrontation Clause. But this view largely rests on an uncompelling, undertheorized version of originalism. And it reflects courts' ongoing difficulties with applying the Constitution to novel technologies.

GOP Claim that Impeachment Overturns an Election is Spurious but Real Intra-Constitutional Conflict Exists: A Dorf on Law Classic

by Michael C. Dorf

Happy new year. For today's classic post, I've chosen to rerun an essay from just over a year ago, which focused on the spurious GOP claim that the impeachment of Donald Trump was a spurious effort to overturn a presidential election of three years earlier. It seems timely now because . . .  well . . . you can figure it out.

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Among the many mutually incompatible and shifting defenses that Donald Trump and his apologists and enablers have offered against his impeachment in the House is the claim that it is an effort to overturn the result of the 2016 election. Like many spurious claims made in bad faith, this one has a point of contact with reality: If the House were to impeach a President of a different political party simply in response to genuine policy differences within the realm of reasonable contestability, that could indeed be an illegitimate effort to overturn the result of the then-most-recent presidential election.

In the prior paragraph, I hedged with phrases like "realm of contestability" and "could" because I regard the impeachment of Andrew Johnson as legitimate, even though it was about a policy difference; that policy difference was whether to reconstruct the Union on more just grounds (the view of Congress) or to frustrate Reconstruction so as to preserve white supremacy and institute apartheid (Johnson's position.) Some policy differences are not mere policy differences. Nonetheless, I will concede that in general, mere policy disagreements, even sharp ones, do not afford permissible grounds for impeachment. There must be evidence of treason, bribery, or other high crimes or misdemeanors. The Constitution says as much.

Accordingly, if it were true that the House Democrats were motivated to support Trump's impeachment by disagreement with his policies or even by dislike of his personal style, that would be problematic. But of course that's not remotely true. The Republican claim that Democrats are acting improperly or unconstitutionally by using impeachment to overturn the result of a Presidential election is thus wholly parasitic on the further claim that there is insufficient evidence that Trump has engaged in impeachable conduct. The Republican strategy is like a defense attorney arguing to the jury that the jury can't convict someone if he didn't commit the crime charged when the jury believes the evidence shows that he did commit the crime charged. It's true sort of, but it's a non sequitur.