Monday, May 31, 2021

Race, Religion, and Supremely Pernicious Constitutional Interpretation

 By Eric Segall

One of the most important and yet under-discussed Supreme Court cases ever decided is Washington v. Davis. This dispute involved civil service tests used by the District of Columbia police force. The tests had disparate negative effects on African Americans, though there was no evidence they were adopted for that purpose. The issue was whether the government's use of these tests violated the (non-textual) equal protection principle of the Fifth Amendment. Given how many facially neutral laws burden racial minorities, this was a potentially country-changing question because the holding would also apply to the (textually based) equal protection clause of the Fourteenth Amendment. 

The enormity of the case did not escape Justice White, who wrote the opinion for the Court holding that to make out an equal protection violation, whether under the Fifth or Fourteenth Amendments, plaintiffs must show that the government intended to discriminate. White wrote the following:

A rule that a statute designed to serve neutral ends is nevertheless invalid, absent compelling justification, if in practice it benefits or burdens one race more than another would be far-reaching and would raise serious questions about, and perhaps invalidate, a whole range of tax, welfare, public service, regulatory, and licensing statutes that may be more burdensome to the poor and to the average black than to the more affluent white.

Given this country's long and sordid history of racial discrimination, there are reasonable arguments that exactly what this country needed in 1977 when this case was decided, and today, is a ruling by the Supreme Court that would make "far reaching" changes to the relationship between and among our country's numerous racial groups. But arguing with the holding in Davis is not the point of this blog post, and I accept the correctness of the decision for purposes of argument. 

Friday, May 28, 2021

Democrats Continue to Allow the Baseline Presumptions to be Set By Republicans

by Neil H. Buchanan
Imagine that you are selling a car, or a house, or anything that requires face-to-face negotiations.  Your asking price is public knowledge, but you also have an "I hope I can at least get this much" price as well as an "I hope I don't have to go that low, but I will if necessary" price.  You receive interest in your item from multiple parties, and you begin to negotiate with one of the possible buyers.  You reduce your price in increments and the other side comes up, but ultimately, the buyer never reaches even your squeal point.  Negotiations break off, and the potential buyer walks away.

What do you do?  It is possible, under some circumstances, that you will lower your asking price.  It is also possible, however, that you will simply go back into the market with your original price and look for the next buyer.  What you would not do is to set your price at the last amount that the buyer who walked away offered you.  (Why did you turn it down?)  Indeed, you almost certainly would not even reset the asking price at your last concession to that buyer.  After all, this is a fresh start.

You would not do that unless you are desperate, or unless you believe that you truly do not deserve the happiness that would come from being able to get what you thought you wanted.  Again, there are times when panic sets in, sometimes for good reason (an external deadline having become binding, for example), and you will reluctantly settle for less.  But that should be based on actual facts, not your presumption that you are going to lose.

Welcome to the Democratic Party that I have known for my entire adult life.  They negotiate against themselves, then they negotiate overly generously with Republicans, then Republicans snub them, and finally Democrats either accept even less or give up entirely.  And when negotiations do begin again, the Democrats take their own concessions as a new baseline, rather than returning to their initial position.

I bring this up now only in part because of the negotiations over the Biden infrastructure plan.  The phenomenon is so ubiquitous that it is almost a cliche, and the press simply assumes that Democrats will (and should) always give up and lower their expectations.  Let us consider some examples of direct negotiations and logically similar changes in presumptions that disadvantage Democrats.

Thursday, May 27, 2021

Does Netanyahu Realize that Both Conquest and Deterrence are Unlawful?

 by Michael C. Dorf

Last week, before a ceasefire was reached between Israel and Hamas, Prime Minister Benjamin Netanyahu offered the following explanation for Israeli military policy with respect to Gaza:

"You can either conquer them — and that’s always an open possibility — or you can deter them. We are engaged right now in forceful deterrence, but I have to say, we are not ruling out anything." 

Much of the critical public reaction to that statement understandably focused on the conquest option. To "conquer" Hamas would presumably mean not simply that Israeli troops would cross the border into Gaza to engage in a ground war for the purpose of degrading the capacity of Hamas to strike Israel with rockets or launch incursions through tunnels, but that Israel would return to the status quo that prevailed prior to the August 2005 Israeli withdrawal and once again occupy Gaza with troops. Indeed, to conquer implies more than merely to occupy, which is, at least in principle, temporary. Conquest of Gaza might include its annexation and absorption into Israel proper, much in the way that Israel regards east Jerusalem as not merely occupied but annexed or that Russia claims to have annexed Crimea.

For most of human history, military conquest was an accepted means by which nation-states expanded their territory. However, since the early twentieth century, international law has rejected conquest. Is there some way to understand Netanyahu's reference to conquest as anything other than as a threat of unlawful force? Maybe just barely. Perhaps Netanyahu was speaking only loosely and using "conquer" as a rough albeit somewhat inaccurate synonym for "invade" and/or "occupy."

Yet if conquer doesn't really mean conquer, what are we to make of Netanyahu's alternative: "deter"? Here too, unpacking what he seems to have meant suggests that the most natural understanding of the proposed course of action--indeed, of the action that was actually undertaken--violates international law.

Wednesday, May 26, 2021

In Defense of Viability

 by Sherry F. Colb

Earlier this month, the U.S. Supreme Court granted cert. in Dobbs v. Jackson Women's Health Organization, a case that will consider the constitutionality of a Mississippi law that bans most abortions after 15 weeks. By taking the case, notwithstanding the absence of any reason to think the law is valid under existing doctrine, the Court has signaled its willingness to reconsider the holdings in Roe, Casey, and their progeny guaranteeing a right to abortion up until viability. Today on Verdict, Michael Dorf explains how Dobbs poses a direct threat to the viability line in ways that other post-Roe SCOTUS cases did not. I want to suggest here that the viability line has positive attributes that the Supreme Court has failed to consider and will likely continue to fail to consider, even as it discards the viability framework and pretends that viability was never as central to the abortion right as it in fact was.

What is viability? It is the point at which a fetus could, if delivered today, survive outside of the womb. Roe v. Wade divided pregnancy into trimesters because Justice Blackmun, who wrote the decision, was very medically oriented from his time as general counsel to the Mayo Clinic, and trimesters played an important role in how doctors divided pregnancy. In Roe, viability, located around the border between the second and third trimesters, was the point at which the government's interest in potential life matured sufficiently to allow for a ban on the procedure, provided exceptions for when the life or health of the woman required an abortion. The first and second trimesters also held significance under Roe, but the Casey plurality treated the trimester framework with so little deference that it would have surprised no one if the three-Justice plurality had referred to the "stupid trimester framework" along with its actual references to the rigid trimester framework, etc. What remained of Roe in Casey was the viability line. Prior to viability, bans were impermissible (as were laws that created an "undue burden" on the exercise of the right to abortion). Post-viability, bans (with exceptions for a woman's life or health) were fine.

Viability, however, would appear to have little to recommend it as a border between prohibiting and permitting abortion. What changes when a fetus becomes viable outside the womb? What changes is more or less that the fetus's lungs have developed enough to take in oxygen without the placenta to absorb it from the mother's bloodstream and pass it along through the umbilical cord. Is the ability to breathe outside the womb a morally relevant characteristic? How could it be? The ability to breathe is essential for life, but it is not the sort of thing to which we attach moral status, any more than the ability to see or to walk or to speak are such abilities. Such capacities are morally neutral, at best. At worst, a fixation upon them as a prerequisite for rights appears to embrace a problematic ableism. Are people who cannot breathe without assistance somehow "less than" those who can?

Tuesday, May 25, 2021

Democracy Killers: A Death Blow by Trump or Exsanguination by Cheney?

by Neil H. Buchanan

Congresswoman Liz Cheney is mirroring her former colleagues who started the Lincoln Project by breaking with Donald Trump.  The Lincoln Project's founders did come to be heavily criticized for setting up what amounted to a grift -- even before the group was rocked by some internal scandals -- but the question most pertinent to their political work was whether they were actually having any impact.  There is no definitive way to confirm or deny any electoral impact that they might have had, but I have serious doubts that they were doing anything more than preaching to the choir.

One thing that they did do, however, was expand their attacks beyond Trump himself, arguing strongly that voters needed to cast out Republicans in order to force a reckoning within a party that had already become a cult of personality.  Again, we do not know whether that mattered at the ballot box (especially given that Republicans picked up House seats and saved some wobbly Senate seats), but as a matter of clear-eyed political strategy, the Lincoln Project was at least aware that they could not say, "We hate Trump, but we're Republicans, so you should vote against Trump while voting for the people who indulge his every dictatorial whim."

What about Cheney?  Does she get it, and is she willing to follow through?  Not so much.

Monday, May 24, 2021

Pro Fetus But Anti-Life: The Sorry State of Child and Family Care in the United States

 By Eric Segall

Last week the Supreme Court announced it would hear a challenge to Mississippi's ban on abortions after fifteen weeks of pregnancy. There was no circuit split, the law clearly violates binding Supreme Court caselaw, and even the ultra conservative fifth circuit struck down the ban. As many folks have observed, the Court almost certainly didn't take this case just to affirm the decision below. 

My guess is the Court will use the case to start to unravel all or most constitutional protections for a woman's decision to terminate her pregnancy. This post is not about whether the right to choose should be constitutionally protected but about the dire consequences for women who will be forced to carry fetuses to term against their will and how badly America compares to the rest of the free world when it comes to providing assistance to women and their families once a baby is born. One thing is certain: other than focusing on the preservation of the fetus, the pro-life movement as a general matter is anything but pro-life.

Saturday, May 22, 2021

Federal Courts Exam 2021 (featuring state-law Bivens action, international adjudication, state habeas, and SCOTUS term limits)

 by Michael C. Dorf

In keeping with my usual custom, below I set forth the exam I administered to my Federal Courts students last week. They did very well. I'm done grading the real exams, so I won't grade (although I welcome) answers in the comments. As usual, the exam was an open-book take-home that students were given 8 hours to complete, with a total word limit of 2500. Enjoy!

Thursday, May 20, 2021

Adding Critical Race Theory to the Right's List of Cultural Grievance Distractions

by Neil H. Buchanan

Even things that should no longer surprise can still be surprising.  A month or so ago, I heard for the first time that Republican legislators in many states (including mine, where I teach at a public university) have decided that Critical Race Theory is a new target, with the possibility that Republicans would outright order teachers never to talk about that theory.  Why was I surprised?  I have no idea, especially because it fits so obviously into the longstanding panicked White grievance agenda that Republicans have been amping up this year.

Despite the targeting of Crit Race being undeniably bad news, I had not given it much thought, except in making a mental note that this would be rather easy to handle if any professor were ever confronted with a new prohibition.  There were frankly too many other roiling issues that have immediate real-world impact for me to respond to this new culture war item by doing anything more than muttering quietly: "Well, of course they're doing that."

Now, however, one very red state has indeed enacted an anti-Crit Race law.  The great state of Oklahoma is not OK, as I learned again and again during my year living in Oklahoma City, clerking on the Tenth Circuit.  And this new ban on teaching Crit Race is a good example of the kind of wedge-issue politics that Republicans nationwide -- and Oklahoma Republicans in particular -- have decided to perfect over the last few decades.

What does the ban ban?  How enforceable is it?  Could it boomerang on its proponents?  What does it all mean?  The short answer to all of that is simple: In substance, this is a meaningless law; but its impact will be seen in emboldening further attacks on academia.  Universities have been a favorite target of the right for years.  Banning Crit Race is only a small part of that broader assault, but laws like Oklahoma's will provide a legislated entry point for harassing professors, administrators, and non-conservative students.

Wednesday, May 19, 2021

The Sixth Circuit Protects a Professor's First Amendment Right to Abuse His Students

 by Sherry F. Colb

Two months ago, the U.S. Court of Appeals for the Sixth Circuit, in an opinion by Judge Thapar, ruled that a professor at a state institution has a First Amendment free speech right to deliberately misgender his student. I want to suggest here that the Sixth Circuit’s decision was not just wrong but outrageous.

As a professor, I am a big supporter of academic freedom. Whenever I hear a story about a professor saying something offensive in (or sometimes outside of) the classroom and then getting into trouble, I typically find myself on the side of the professor’s right to free speech. If academic freedom and free speech more generally mean anything, they mean that people can voice viewpoints that others find offensive, in teaching, in scholarship, and otherwise. 

I am dismayed by news that that a professor at one or another university has “quit” after failing to fall in line regarding some controversial issue. I might disagree with what the professor has said or done (and I often do), but the “correct” viewpoint cannot be so fragile as to wilt in the face of a dissenter. The answer to offensive speech is usually more speech.

How we address one another in class, however, is a very different matter. Consider some examples unrelated to gender identity and pronouns. Say Professor Misanthrope wants to call all of his male students “Mr. Dick” and all of his female students “Ms. Cunt.” Is that protected speech under the First Amendment? Does the school really have to tolerate Professor M’s behavior while the students in his class absorb his deliberate insults day after day? Does the First Amendment truly mean that schools cannot require professors to behave courteously towards their students? Does this same freedom extend to students? May students address their professors as “Stupid Fuck”? Must professors just continue their lectures after being addressed in that way?

Tuesday, May 18, 2021

How Badly Did the Biden Administration and the CDC Blow It?

by Neil H. Buchanan

By pretending that there were only scientific decisions to be made in dealing with COVID-19, the Biden Administration has allowed non-politicians to make an extraordinarily consequential political decision.  I completely understand why Biden's people want to make it all look apolitical, but it is not.  And because the politics of mask-wearing was already so badly distorted by misinformation, this dereliction of duty could potentially lead to a real disaster.

Before we get there, however, it is important to emphasize that this is the first and only genuine blunder by the Biden team.  They were having an especially impressive run when it came to dealing with the pandemic, particularly in straightening out the messes that the previous administration left behind.  And because the scientific community had done such a great job in bringing vaccinations to the public so quickly (for which, as I explained recently, Donald Trump deserves at best minimal credit because he allowed it to happen without actively screwing it up), Biden was able to put the country on a path that seemed likely to lead us back to something resembling normal life in very short order.

Even so, Biden was taking flak for being too cautious, and red states in particular were acting as if the pandemic had already been solved, even as we continue to add more than 500 deaths per day to the grim total that is now approaching 600,000 lost Americans.  I certainly understand why Biden wanted to make this happen right away, and why he wanted it to look apolitical.  But again, this is political.  The only real questions are how much damage this mistake will cause, and whether it is possible to mitigate its effects.

Monday, May 17, 2021

Gun Control, the Second Amendment, and Originalism's Folly

 By Eric Segall

Although the Supreme Court will decide a few nationally important cases this term, such as one relating to the claims of a religious organization that it get preferential treatment under the free exercise clause, and yet another case challenging the validity of the Affordable Care Act, there are relatively few blockbuster cases coming down this term. Next year, however, expect a big abortion case, and the Court has already decided to hear a challenge to New York's law regulating who can carry guns secretly in public. Second Amendment advocates allege that the law is unconstitutional because people have to present a special reason to carry guns, above and beyond a generalized need for self-defense. New York argues that the law is necessary for public safety.

The Justices will, of course, pay lip service to originalism when they decide this case, but the nature of "arms" themselves and American society today are so different from colonial America that making decisions based on the values and practices of those earlier times is facially absurd. Moreover, if the Justices take seriously the history of gun laws in this country, absent obviously unreasonable or irrational laws,  they should (but won't) modify their decisions in District of Columbia v. Heller, and McDonald v. Chicago, to allow for reasonable regulation of today's deadly weapons.

This blog post outlines the major and most obvious arguments demonstrating that strong judicial oversight of state and federal gun laws cannot be justified by an originalist interpretation of the Second Amendment. The only way to arrive at strong constitutional protection for gun rights is through living constitutionalism--something this Supreme Court and most conservative scholars pretend to reject. Although we likely will not get a resolution of this case for another year, it is never too early to discuss the absurdity of originalist arguments against New York's reasonable law trying to keep its people safe.

Friday, May 14, 2021

Ancient Rome? Italy? Hungary? Envisioning a Post-Democratic United States

 by Michael C. Dorf

How will future historians chronicling our current age write about the 2020 election and its aftermath? Conventional wisdom holds that it will either be described as the narrow aversion of a catastrophic second term for Donald Trump or an unheeded warning and thus at most a pause. If those turn out to be the options, of course I hope that the next few years play out in a way that puts us in the first scenario. However, I want to suggest a third--and still darker--option. Consider the following opening to a future history of the by-then-formerly-democratic United States.

During the 2020 campaign, candidate Joe Biden warned that a second term for Donald Trump would change the country in a way that would do permanent harm, whereas his election would restore U.S. institutions and values that had been damaged by Trump but not irreparably so. Biden's warning was both right and wrong. Biden's election and the policies he pursued did temporarily restore the status quo ante, but in retrospect, it was probably the worse outcome for the long-term status of constitutional democracy in the U.S.

Had Trump legitimately won the 2020 election, he would not have had occasion to challenge the basic institutions that had to that point credibly calculated votes. True, given demographic trends and the fundamental unpopularity of Republican policies, his party would have pursued the voter suppression strategies it had pursued before Trump and that it aggressively pursued in the actual aftermath of the 2020 election. But if Trump had legitimately won the Electoral College vote in 2020, it would not have occurred to him to cajole or threaten state and local election officials; nor, in this alternative universe, would 2021 have seen the transfer of power to count votes from persons with integrity to people controlled directly by gerrymandered Republican state legislatures. And if that had not happened, then Trump would have retired from politics after the completion of his second term. Instead, in our actual universe, the ability of Republican-controlled state legislatures and their agents to determine the outcome of not only the presidential election but all elections led eventually to the demise of constitutional democracy in the United States and its replacement in all but name by one-party minority rule.

Put differently, in this third scenario I'm imagining, we would have been better off--well, less bad off might be more accurate--had Trump won a second term. Awful as his policies would be in every respect, attacking the vote-counting apparatus of government would not have become the central element of Republican ideology. Dark enough for you?

Thursday, May 13, 2021

Cheney's Supposed Long Game and the Death of Democracy

[Note to readers: In my new Verdict column today, I ridicule the panic about "cancel culture" on the American right.  Basic message: This is the "political correctness" panic on steroids, and it has become a parody of itself surprisingly quickly.  And if you disagree with me, you are guilty of trying to cancel me, you woke McCarthyite censorious silencer!  My column below, by contrast, discusses a topic that has genuine content.]

by Neil H. Buchanan

Is there renewed hope, now that Liz Cheney is unleashed and on a mission to stop Trump and Trumpism?  Not really, but it is important to try to understand what is and is not happening to our constitutional order.  New and interesting things are indeed afoot, but there is very little reason to think that the bottom line will get any better.

Wednesday, May 12, 2021

The Wisdom of Al Sharpton and James Madison: Crime Control and Police Accountability Are Compatible

 by Michael C. Dorf

In 2004, The Onion ran a headline that read: "Homosexual Tearfully Admits To Being Governor of New Jersey." It was a reference to a sex scandal that engulfed then-Governor-of-New-Jersey Jim McGreevey. The joke was that being a gay man was not embarrassing (as of course it ought not to be, although McGreevey's having been closeted was, at the time, a too-common course of action for gay politicians), that even having an extramarital affair was not especially problematic, but that being governor of the Garden State was indeed shameful.

Yesterday's news reminded me of that Onion headline. In response to news stories linking the ransomware attack on the Colonial fuel pipeline's computers to lax Russian government enforcement or even tacit Russian government encouragement, the hackers responsible for the attack, who operate under the moniker Darkside, apparently released the following statement on the dark web: "We are apolitical, we do not participate in geopolitics, do not need to tie us with a defined government and look for other our motives." In other words, "hey, we are not state actors or terrorists; we're criminals." If this were an Onion story, the headline would be something like "Criminal Hackers Indignantly Deny Patriotic Motives."

Tuesday, May 11, 2021

Blaming the Victims of Rigged Elections in 2022 and 2024

by Neil H. Buchanan

Will Democrats pass major bills at the federal level to protect voting rights?  The answer to that question depends ultimately on the one or two Senate Democrats who continue to insist that the filibuster in its current form is sacrosanct (even though it has been changed throughout the country's history) and that there is a way to get ten Republicans to vote for something to stop Republicans from disenfranchising Democratic voters.  Right.

As I wrote two months ago, even the enactment of H.R. 1 and H.R. 4 (the latter of which, named for former Rep. John Lewis, would undo most of the damage from Shelby County v. Holder) might well be insufficient to save democracy in the United States.  Still, that there is even a sliver of hope that the these bills might yet be passed by suspending or altering the filibuster rules, it is good news (of a minimal sort) that the Senate Budget Committee today held a "markup" session for H.R. 1.  If a good outcome is going to happen, this is a necessary step, no matter how challenging the remaining steps might be.
If anything, however, the likelihood of success is lower than it has ever been.  Consider what has happened since Georgia passed its shockingly cynical law to guarantee that Democrats lose all future elections in that state.  There were many condemnations followed by high-profile businesses taking principled stands, but the Georgia Republicans simply ignored it all (other than blaming everything on "wokeness").  That reaction, moreover, seems to have spent all of the opposition's energy.  Only a few weeks later, when Florida's Republicans outdid their frenemies in Georgia, there was no serious talk of boycotts of my state by sports leagues, conventions, or anything else.

In other words, Republicans understand the power of power.  They know that they can weather a few very bad headlines, assume that the storm will pass, and then get back to consolidating their anti-democratic gains.  If there is the possibility of passing federal legislation to undo some of the worst state-level Republican moves, it will have to be accompanied by massive public support for the Democrats to act.  Unfortunately, it appears highly unlikely that anything remotely like that will materialize.  Voting rights are now old news.

What will happen if Republicans' voting restrictions and other changes to election procedures are kept in place?  The short answer, about which I have been warning from any number of angles for the past several years, is that constitutional democracy will be effectively over in the United States.  Today, however, I want to think about how the political conversation will go in 2022 and 2024 as this inevitably plays out.  How will the pundits and politicians describe the Republicans' takeover when it happens?

Monday, May 10, 2021

Reforming the Court: Five Non-Partisan and Much Needed Proposals

 By Eric Segall

The thirty-six member Supreme Court reform commission is unlikely to suggest, much less try to implement, the important goals of ending life tenure or altering the number of Justices on the Court to provide more partisan balance. Both changes have some support among lawyers, law professors, and politicians but neither is politically viable at this time. There are, however, a number of other recommendations the commission should discuss, debate, and then propose. 

Although it is at best unclear whether the commission is supposed to make recommendations, nevertheless, as Founder Edmund Randolph said when describing the 1787 constitutional convention, which was supposed to end with amendments to the Articles of Confederation but resulted in an entire new Constitution: "There are great seasons when persons with limited powers are justified in exceeding them, and a person would be contemptible not to risk it." 

The Supreme Court reform commissions should take heed and put forth the following proposals in no uncertain terms. All of these suggestions are completely non-partisan.

Friday, May 07, 2021

SCOTUS, Guns, and Police-Civilian Interactions

 by Michael C. Dorf

My professional interest in the Second Amendment case the Supreme Court recently added to its docket concerns the question whether there are textual, historical, doctrinal, pragmatic, or other grounds for distinguishing between firearms possession in the home--protected by the Court's 2008 and 2010 decisions declaring the Second Amendment an individual right--and firearms possession outside the home. In a symposium article in 2008, I suggested that the answer is probably not but that the matter is not free from doubt. I offered a number of means by which the Court, if it so wished, could limit the right to the home. The following year, Prof Darrell Miller wrote a longer article that gestured in the same direction.

I very much hope that the Supreme Court accepts the suggestion offered by Professor Miller and me, but I'm not optimistic. I suspect that the Court will find at least some right to carry firearms in public--either concealed or openly--sufficient to invalidate restrictions like those at issue in the new case from New York and similar ones in other parts of the country. My home state forbids open carriage but issues concealed-carry permits to those in specific high-risk jobs or to others who can demonstrate "proper cause." I fear that the Justices will endanger millions of Americans who live in places that have made the decision to restrict firearms in this way by declaring such laws invalid and holding that states must presumptively permit competent adults to carry firearms in public (with exceptions only for the likes of "felons and the mentally ill" as recognized in the Heller case).

I turn now to how a general constitutional right to possess firearms in public could interact with policing. The short version is "not well."

Thursday, May 06, 2021

Why I Will Always Despise Bill Clinton

by Neil H. Buchanan
Last week, a columnist in The Washington Post wrote a very important piece that brought back some very bad memories.   Radley Balko noted that we have now reached the 25th anniversary of Bill Clinton's signing of AEDPA, the Anti-Terrorism and Effective Death Penalty Act of 1996.
Balko began the piece by recounting that Clinton expressed concern in 2011, the day after a man named Troy Davis was executed by the state of Georgia, about the railroading of Davis.  Clinton, well into his ex-presidency, could not understand why the extensive evidence that Davis had been wrongly convicted was not being heard in a federal court.  Indeed, Clinton called it "an unusual case," but as Balko demonstrated, it was no such thing.  It was, in fact, the direct result of how AEDPA was designed to work.
During my clerkship on the 10th Circuit in 2002-03, AEDPA was the bane of our existence.  We (and I think I can speak for every clerk I knew who ever expressed an opinion) hated it not only because it was so manifestly set up to perpetrate injustice.  It was also a freakin' mess.  Navigating the procedural morass around habeas and criminal appeals in general had never been easy, but the career clerks who had seen both pre- and post-AEDPA appeals said that the new law made it immeasurably worse.  Every appeal was ridiculously complicated, but the net result was almost always that the appellant lost on a procedural bar.  Merits?  We never reached the merits.
Again, Clinton signed that law.  Not only did he sign it, he crowed about it.  I had not known that he was later so hypocritical about it, but that certainly should not surprise anyone.  In the midst of the country's understandable freakout about the Republican Party's descent into dictatorial madness, this was a helpful reminder that there really are some things for which the Democrats should be held to account.
This is not a matter of bothsidesism or false equivalence (or another near-synonym, whataboutism).  It is, instead, to remind ourselves that the Democrats’ worst days have been those -- most of them under Clinton, but many under Barack Obama (and even during Republican presidencies, led by Democratic "centrists" in Congress ) -- when they try to act like Republicans.

Bill Clinton did not invent Republican Lite, but he perfected it and unleashed it on his party and the body politic.  We are still seeing its effects.  Let us review.

Wednesday, May 05, 2021

Politicians' Career Options and Partisan Affiliations (No, this column is not only about Liz Cheney)

by Neil H. Buchanan

Ever since January 6 and the Trump-inspired attempt to overthrow America's constitutional republic, one of the few strong voices on the political right condemning Donald Trump has been Liz Cheney, who as of this writing still holds the third-ranking position in the Republican leadership in the U.S. House.  Not only has Cheney refused to tone down her condemnation of Trump, she has even said bluntly that she will not support Trump if her party nominates him to run again in 2024.  Compared to Mitch McConnell's "I'll support the Republican nominee, whether it is Trump or anyone else," Cheney's approach is more than refreshing.

In my Dorf on Law column last Thursday, I wrote some guardedly positive things about Cheney.  After noting the inescapable fact that she is awful on policy -- at least as bad as one would expect Dick Cheney's daughter to be -- I held her up as someone who has become a genuine profile in political courage.  I should emphasize that even this non-policy-related commitment to principle is rather new for her, as (among many other examples) she did not have any problem voting against Trump's first impeachment.  And as far as I know, she has not spent her time trying to put a leash on the extremists in her caucus, from Jim Jordan to Mo Brooks to Louie Gohmert to Paul Gosar.

Even so, I gave her genuine credit for what she has been doing in the last four months.  On the comment board, however, one of our dedicated readers (while mostly agreeing with the column) suggested that maybe I was being too kind:
I would just venture one small quibble. You say Liz Cheney's stand on principle "might end her career." To my—admittedly limited—understanding, the Cheney family is something akin to royalty in Wyoming. Sort of like Romney in Utah. If that's right, then, as with Romney, I'm not sure Cheney puts much or anything at risk with criticizing Former Guy. And, occasional mouth noise emissions aside, I note that, per 538, her career voting alignment with F.G. exceeds 90%. Even with the objections to the electors and impeachment, it's not like her votes impacted the outcomes at all. It seems like she gets all the benefits of "virtue signaling" or whatever you want to call it with little or no personal cost.
This raises an interesting set of issues, so I will use that comment as an excuse to think about Cheney's potential future and more broadly about political careerism.

Tuesday, May 04, 2021

Defective Democracies (and Promotion of a Conference)

 by Michael C. Dorf

On Friday, I'll be participating in and delivering a keynote address at a one-day conference to celebrate and promote a new book on constitutionalism. The conference, which is jointly sponsored by Pontificia Universidad Javeriana and Cornell Law School's Berger program is occurring "in" Bogota and Ithaca, but really in cyberspace and all over the world. You can register for the webinar (for free) here. My lecture will be from 10:05 am to 11 am (Eastern time), but the conference opens at 9:15 and includes an excellent lineup. At the conclusion of today's brief essay, I've set out the complete schedule.

For now, I'll briefly preview my lecture, which is titled "The Role of Constitutional Courts in Defective Democracies." My thesis is that they play roughly the same role in defective democracies as in reasonably well functioning democracies. Somewhat more provocatively, I'll argue that I have some expertise on the subject because the U.S. is a defective democracy.

Monday, May 03, 2021

Cursing Cheerleaders, Constitutional Interpretation, and Law as Social Policy

 By Eric Segall

Last Wednesday, the Supreme Court heard oral argument in a case where a student was punished for social media speech she posted after she didn't make the varsity cheerleader team. There has been a lot already written about the case and how hard it will be for the Justices to decide it in a way that both respects the rights of students and allows school officials to take appropriate disciplinary action when necessary. Whatever the Court decides, and this case is truly hard as I will explain below, law will have very little to do with the ultimate decision. And that dirty little secret reveals important truths about much constitutional litigation and possibly how interventionist we want judges to be when the law runs out.

The cheerleader in this case, referred to in the complaint as B.L., tried out for the varsity cheerleader team but, alas, was told she would have to settle for the JV team for another year. She was upset that another girl, who didn't have to be on the JV squad first, made the varsity. The day after B.L. received the bad news, a Saturday, she posted on Snapchat two messages: the first one consisted of a photo in which she and a classmate raised their middle fingers at the camera, with the caption: “Fuck school fuck softball fuck cheer fuck everything.” The second message, posted shortly after, consisted of the text: “Love how me and [another student, whom B.L. identified by her name] get told we need a year of JV before we make varsity but that doesn’t matter to anyone else?" According to the brief of the school, students saw the posts, were upset by them, and talked about them the following week at school. The school also claims that B.L. had agreed to a set of rules for being on the team, including the following: “There will be no toleration of any negative information regarding cheerleading, cheerleaders, or coaches placed on the internet.”