Wednesday, June 30, 2021

Insider Political Violence is the Iron Fist. Beware the Velvet Glove.

 by Michael C. Dorf

Earlier this year, I participated in a conference sponsored by the Brennan Center focusing on gun rights in times of unrest. The short papers from the conference have now been published. Here I'll say a few words about my paper, Disaggregating Political Violence, connecting it to the ongoing destruction of American democracy.

The core claim of my paper is easy enough to state: Modern U.S. constitutional doctrine governing the limits on government power to intervene when political activity--such as a march or rally--threatens to turn violent is based on a paradigm of what I call "outsider" political violence, that is to say, 

acts perpetrated by anarchists, communists, and other marginal figures who have virtually no chance of succeeding in their political aims but nonetheless pose a threat to public safety. By contrast, with the emergence of political violence as a tactic favored by substantial numbers of supporters of one of the two major political parties, the United States now faces a threat of what I shall call insider violence. Like outsider violence, insider violence poses a risk to public safety, but it also poses a risk of fatally undermining democracy.

I argue in the paper that First Amendment doctrine and (the substantially less developed) Second Amendment doctrine fit poorly with the threat posed by insider violence. Although insider political violence is not new in American history, most of the major past episodes (such as slave patrols, the Klan, and the use of Pinkerton guards and private militias to bust unions) pre-date modern constitutional doctrine. I argue further that while rethinking constitutional doctrine regarding political violence may thus be necessary, it probably will not be sufficient to address the threat we face.

Tuesday, June 29, 2021

The TransUnion Case and the Lochnerization of Standing Doctrine

by Matthew Tokson

Privacy Twitter was abuzz on Friday with laments about the effects of TransUnion LLC v. Ramirez. In TransUnion, a class of plaintiffs who'd been erroneously flagged as potential terrorists by a credit reporting agency sued for damages. In a 5-4 decision, the Supreme Court held that plaintiffs who could not prove that their terrorist designation had been reported to third parties could not sue, because they lacked a "concrete" injury under the Court's standing doctrine. That Congress had passed a law permitting individuals to sue credit agencies that fail to use reasonable procedures to ensure the accuracy of their credit reports did not matter. Congress could grant plaintiffs a legal right, and that right had clearly been violated by TransUnion, but the Court would not recognize standing in the absence of a concrete injury. 

The TransUnion decision is likely disastrous for privacy plaintiffs in future cases because it sharply limits the ability of plaintiffs to sue based on the risk of future harms. Privacy harms are often difficult to demonstrate concretely, and frequently rely on assertions of future risks. Congressional recognition of privacy and data security harms is likely the best path forward for establishing robust protections for consumer privacy. But the Supreme Court's ever-more-aggressive interpretations of standing doctrine may thwart Congress's ability to protect consumer privacy or meaningfully enforce existing protections.

Monday, June 28, 2021

Standing: A Doctrine Like No Other

 By Eric Segall

There is one constitutional law doctrine that rears its ugly head across the spectrum of controversial issues. It has played a role in civil rights cases, environmental cases, privacy cases, free speech controversies, separation of powers disputes, and in numerous other areas of constitutional law. It is also the one doctrine that virtually all commentators, left, right, and middle believe is singularly incoherent. That doctrine is standing, and it is a doctrine like no other.

The week before last, the Supreme Court used standing to reject yet another challenge to the Affordable Care Act. The Justices held that neither the states nor the individual plaintiffs in California v. Texas satisfied the all too familiar three part test that the Court has used for the last fifty years to determine standing: every plaintiff in federal court must suffer a personal injury caused by the defendant that can be redressed by a favorable court ruling. In a previous post, I documented the incoherence of the personal injury prong of the standing test (that prong was used by the Court on Friday of last week to deny standing to plaintiffs who were quite obviously injured under federal fair credit reporting laws). In this post, I address the causation prong, which was the one at issue in the ACA case.

Friday, June 25, 2021

A Modest Proposal to Protect Profanity in Public Schools (Warning: Contains Profanity)

 by Michael C. Dorf

Perhaps the most remarkable aspect of Mahanoy Area School Dist. v. B.L.--the case of the disappointed cheerleader swearing via Snapchat--is that only Justice Thomas dissented. Although his dissent is based on the history of schools' in loco parentis authority, he is overall so skeptical of any free speech rights of minors that we can discount his dissent as something other than an effort to apply the same basic principles that the majority applies. Put differently, all eight Justices who grappled with Mahanoy as a matter of free speech doctrine came to the same conclusion: schools have some authority to regulate student speech that  occurs off school grounds, especially with respect to bullying and threats, but none of the justifications that underwrite that authority applied here, rendering the school's punishment of Brandi Levy excessive. (Levy has made no effort to disguise her identity, so I'll refer to her by name rather than by the initials that appear in the case.)

I basically agree with Justice Breyer's analysis. I am surprised that all of his colleagues agreed, however, because the case was difficult. Not difficult in the sense of what the school authorities ought to have done. To my mind, they obviously overreacted. But there will be other cases in which the school/not-school line is less clear and the question whether a student is engaged in bullying or threatening behavior is also less clear. The Mahanoy Court gave parents of disciplined students a powerful weapon--the ability to invoke the First Amendment in court pursuant to a fairly indeterminate multi-factor balancing test. Given the number of professed formalists on the Roberts Court, I would have expected someone to object that the Court ought to have issued a more determinate rule.

Admittedly, it's not clear that any sensible such determinate rule was available. There were seemingly only extreme options. The Court could have gone the Thomas route and said that students have no free speech rights, but that would be inconsistent with precedent and also draconian. Or the Court could have said, as the Third Circuit did, that schools have no authority to regulate speech outside school, but, as the majority rightly explains, that would have called for a highly artificial drawing of lines, especially now that we have grown accustomed to remote instruction and social media connecting students in a community defined by elements other than physical location. So I understand why no Justice endorsed a clear formal line; I just find it somewhat odd that none (except Justice Thomas) fretted over the lack of one.

Nonetheless, let me tentatively suggest that there was a fairly clear line available. The Court might have said that profanity when not threatening, demeaning, bullying, or disruptive of a class lesson or other official school event, is protected speech by high school students, regardless of whether it occurs on or off school grounds. 

Thursday, June 24, 2021

What Happens Next on Voting Rights Is Highly Unlikely to Be Enough

by Neil H. Buchanan

It should come as no surprise that Senate Minority Leader Mitch McConnell is once again operating in bad faith.  Indeed, he barely tries to hide it anymore.  When he announced his opposition to Joe Manchin's watering down of the For the People Act (H.R.1, S.1), McConnell grabbed onto Stacey Abrams's willingness not to oppose the replacement bill and snidely declaimed that "the plan endorsed by Stacey Abrams is no compromise."  Why?  "It still subverts the First Amendment to supercharge cancel culture and the left's name-and-shame campaign model.  It takes redistricting away from state legislatures and hands it over to computers."
Having regurgitated his party's culture wars nonsense ("cancel culture" showing up here apparently as McConnell's take on forcing large donors to be publicly identified) before stoking mindless technophobia, McConnell then said that the bill's "rotten core" is "an assault on the fundamental idea that states, not the federal government, should decide how to run their own elections."  So the way that states run elections for federal office is not a federal concern?  We have moved from states as co-sovereigns whose interests the federal government must respect to states as the only sovereigns who matter.  Now we know.
None of that is surprising, given McConnell's long and ugly track record.  I was genuinely surprised, however, that he mocked the very idea of compromise.  After all, Manchin caused much teeth-grinding among Democrats by including national voter ID requirements -- long a top Republican priority -- in his bill, demonstrating that Manchin at least understands the nature of bargaining.  But McConnell ridiculed the gesture by saying that, gee, Democrats were always so opposed to voter ID, and now they are agreeing to it?  McConnell took this as proof that Democrats were lying all along.

So the answer to "Let's compromise" is: "See, I knew you didn't care about this stuff!  Now give us everything we want."  If McConnell is trying to prove Manchin and other supposedly moderate Democrats are fools for taking his party's stated concerns about partisanship seriously, he is doing a great job of it.  And not one Senate Republican could be found to cast a "Let's at least allow debate" free vote, even knowing that Republicans had the votes to stop it.
Here, I want to discuss the substance of the voting rights question and how something like H.R.1 could move forward.

Wednesday, June 23, 2021

The NYT's Roster of Columnists Becomes Slightly Less Infuriating

by Neil H. Buchanan

Even as he tried to pen a gracious departing column, Frank Bruni could not stop himself from offering a huge bowl of self-important, treacly, and hypocritical nonsense.  Harsh?  You bet, but consider that a column devoted in large measure to decrying pundits’ lust for click-bait was titled "Ted Cruz, I'm Sorry."  Lest we think that this was an editor's decision to make the piece look juicy, Bruni's opening line was, "I owe Ted Cruz an apology."

Indeed, that title is the only reason that I read the column.  Click-bait works, of course.  It was only because of that enticement that I even discovered that I was reading Bruni's farewell piece.  I had long ago given up on reading his columns, which were bad for none of the reasons that he thinks that columns can be bad.

But no matter the reason, there it was: "I’m a columnist no more." Finally!!! If only he could take Friedman, Dowd, Stephens, and a few more with him.  Other than the pleasure of seeing his ten-year occupation of space on The New York Times opinion page end, however, is there anything of even minor importance to be said about Bruni's departure?  Perhaps.

Tuesday, June 22, 2021

The Power of Nothing: What the Post-2017 Affordable Care Act and the Religious Freedom Restoration Act Have in Common

 by Michael C. Dorf

Last week I discussed the standing-by-severability issue in California v. Texas. Today, my latest Verdict column addresses the merits of the case, mostly to respond to points made by Justice Alito (joined by Justice Gorsuch) in dissent. I begin by explaining why, contrary to the Alito dissent, the individual mandate--if it exists and if it is unconstitutional--is severable from the rest of the Affordable Care Act (ACA). Some severability inquiries are difficult, because they require counterfactual analysis. This one isn't and doesn't. We know Congress thought the rest of the ACA could operate without a mandate because that's what Congress created--an ACA with no enforceable mandate--when it zeroed out the tax penalty in 2017.

My severability analysis in the column also includes discussion of a point I have not seen widely discussed (although it's possible someone anticipated my view). I explain:

To be sure, most or perhaps even all of the Republicans who voted to zero out the tax penalty in 2017 would have also liked to pass another law eliminating the rest of the ACA. However, that kind of intent with respect to legislation that Congress did not pass is irrelevant. Consider that most of the Democratic members of Congress who voted for the American Rescue Plan Act in 2021 would also have liked to raise the minimum wage to $15 per hour, but the parliamentarian ruled that change out of bounds via reconciliation, so it did not make it into the law. Just as it would be absurd to argue that the American Rescue Plan Act tacitly imposes a $15 per hour minimum wage because that was the unenacted intent of most of the Democrats who voted for the Act, so it is absurd (or at least very much mistaken) to say that the unenacted intent of the Republicans who voted for tax cuts in 2017 invalidates the entire ACA.

My column then turns to the merits. Condensing an argument that appears more fully in an amicus brief that Marty Lederman and I filed, I explain first that everyone understood in 2017 that zeroing out the tax penalty was effectively a repeal of the mandate, and a repealed law doesn't exist so cannot be unconstitutional. I then point to a fundamental error that the plaintiffs and the dissent make. They say that NFIB v. Sebelius rested the mandate's validity on the taxing power, so without any tax obligation, the mandate is unconstitutional. But that's plainly wrong. As I explain in the column and as Marty and I explained at length in the brief, if Congress has the power to require Y, it may give regulated actors a choice to do X or Y, even if Congress lacks the power to compel X standing alone. X is a requirement to purchase health insurance. Before the tax was zeroed out, Y was paying extra taxes. Now Y is doing nothing. Because Congress has the power to tell people they don't have to do anything, the post-2017 version of the ACA is valid.

Monday, June 21, 2021

John Roberts: Hubris-in-Chief

 By Eric Segall

The prevailing wisdom both inside and outside legal academia is that Chief Justice John Roberts is first and foremost an institutionalist who cares deeply about his personal legacy and how his Court will be viewed when he finally retires. Supreme Court commentators point to his two (as of last Thursday three) votes to uphold the Affordable Care Act, as well as his decision to abide by the Court’s precedent when he invalidated two abortion laws in June Medical v. Russo last year, as the main support for the notion that the Chief sometimes subsumes his personal preferences for the greater good of Supreme Court legitimacy over time. His extremely narrow opinion for the Court in Fulton v. City of Philadelphia last week in favor of a Catholic social services agency joined in full by the Court's three liberals may well be seen in the same light. Court watchers on both the left and the right seem to share this narrative.

This oft-told tale, however, is mostly fiction.  The reality is that the defining feature of Chief Justice Roberts’ jurisprudence is not his alleged institutionalism but his non-judicial hubris.

Friday, June 18, 2021

Why Did the California v. Texas Majority Reject Standing-by-Nonseverability? Five Possibilities

 by Michael C. Dorf

Justice Breyer's majority opinion in California v. Texas rejected standing by the individual plaintiffs on relatively easy-to-understand grounds. They said the Affordable Care Act mandated them to purchase health insurance. The majority said that with the tax set to zero, there was no penalty or enforcement of any kind. The ruling that the individual plaintiffs lack standing was a no-brainer. After all, even when a law does clearly contain a penalty for violation, a plaintiff seeking injunctive or declaratory relief against its enforcement must show that there is a fair probability of enforcement in order to present a ripe case or controversy. Where there is not even a theoretical possibility of enforcement--because no enforcement mechanism--that's out of the question. The majority concluded that any injury the individual plaintiffs suffer in virtue of purchasing health insurance is thus not traceable to any action or potential action by any government official.

But what about the state plaintiffs like Texas? Justice Alito (joined by Justice Gorsuch) in dissent says that the ACA imposes all sorts of costs--and thus pocketbook injuries on states. The majority responds that those costs are imposed by provisions other than the individual mandate, and so any injury is not caused by the mandate. Justice Alito responds by saying that even if so, those other provisions are non-severable from the mandate, and so that gives rise to standing. Why does the majority reject standing-by-nonseverability?

The answer isn't entirely clear. I'll explore five possibilities.

Thursday, June 17, 2021

Your Final Jeopardy Answer Is: 'Racism'

by Neil H. Buchanan
Contestant #1: "What is the reason that American democracy has never been universal?"
Contestant #2: "What is the device by which the wealthy divide and conquer those whom they oppress?"
Contestant #3: "What is assumed to be unchangeable and immutable, thus narrowing policy choices and lowering expectations?"
Ghost of Alex Trebek: "Judges?  I just want to check ...  Yes?  Yes!  For the first time ever, all three questions are correct, even though they are all different.  Congratulations to all of our contestants.  You entered Final Jeopardy in a three-way tie, and you all won by knowing at least one reason why racism is such a difficult problem for America and the world.  See you again on tomorrow's show.
Now that the Republican Party has decided that open race-baiting is no longer disqualifying -- indeed, that it might be all but required to satisfy much of their cult of White grievance -- this country's discussion of race has become both more difficult and more essential.
The Trumpist Right has decided to go after Critical Race Theory.  One of the most (in)famous conservative economists recently dismissed proposals to increase the minimum wage, smugly asserting that "groups including 'the poor' and 'the minorities' were not worthy of a $15 (£10.60) minimum wage for a first job."  It is a good thing that such a comment still engenders criticism, but none of his allies will "cancel" him, and he will continue to give terrible advice while gazing at the Presidential Medal of Freedom that Donald Trump tossed his way.

My central inspiration in writing today's column comes from having thought again about the hypothesis that, as one source put it, "it is often suggested that it is easier to build welfare societies in small and homogeneous countries such as the Nordics, compared to larger and more diverse countries."  I realize that there is controversy about that hypothesis, but I want to think about what it means for the United States if that claim is true -- or if enough politicians and analysts believe that it is true.

It recently struck me that, as I had Contestant #3 above argue, we simply assume that racism is unchangeable, forcing us to be less ambitious in thinking about social and economic change.  Why do we assume that to be the case?

Wednesday, June 16, 2021

Trump's Pressure Campaign Against Acting AG Rosen Was Small Potatoes But Highlights the Elusiveness of the Norm of Justice Dep't Independence

 by Michael C. Dorf

For much of the day yesterday, the lead story in the online version of the NY Times was this: "Trump Pressed Official to Wield Justice Dept. to Back Election Claims." The story details how, even before William Barr stepped down as Attorney General, Trump and his loyalists privately urged soon-to-be-Acting AG Jeffrey Rosen to support claims and file briefs making factually baseless arguments about election fraud that had either already been rejected or were about to be rejected by every court to consider them.

The timing of the story makes sense; the emails detailing the campaign have only just become public. However, the breathless coverage is puzzling. Compared with the pressure Trump exerted on the Georgia Secretary of State to "find votes" and his encouragement of a violent seditious mob to overthrow the government, the emails to Rosen and his aides urging the filing of briefs are small potatoes. It's a bit like learning that a serial killer also didn't pay the fines on his overdue library books.

To be sure, a President seeking to use the DOJ for his own narrow political interest violates important and longstanding norms, but the fact that Trump wanted DOJ to do that is hardly news. From the firing of James Comey, through Trump's very public displeasure with Jeff Sessions for recusing from the Russia investigation, through Barr's dishonest mischaracterization of the Mueller Report's conclusions, through the revelation, just a few days ago, that Barr's DOJ subpoenaed private data on prominent congressional Democrats as part of a leak investigation, the public record was already replete with evidence of Trump and his enablers utterly disregarding the norm of DOJ independence.

Yet if there is no big-picture news in the pressure campaign on Rosen, the episode nonetheless provides an opportunity to reflect on the norm of DOJ independence more broadly. I shall argue that the norm is important but fuzzy, because it relies on a somewhat elusive distinction between ideological politics and partisan politics. Consequently, bad faith actors (like Trump and his minions) can undermine or evade it.

Tuesday, June 15, 2021

How the Ultra-Wealthy Get Away With It (Paying Ultra-Low Taxes): In Part, Because It Is Truly Complicated

by Neil H. Buchanan
Last Thursday, I wrote a column here on Dorf on Law discussing ProPublica's recent blockbuster report on the incredibly low taxes paid (in many years zero dollars) by the 25 wealthiest people in the world.  As a percentage of accurately measured annual income, these wealthy people pay what ProPublica calls "true" tax rates in the low single digits.

What I hope was my main contribution with that piece was to emphasize that the non-news -- extremely rich people get away with paying low taxes -- is accompanied by good news in the way that the report changes the terms of the conversation.  Specifically, ProPublica's true tax rate calculation substitutes "change in wealth" in the denominator for the more standard "taxable income."  (Even the broader "gross income" leaves out most changes in wealth.)  As I stated there, and as I will say at more length here, that is a non-obvious move and can be misunderstood, but it is genuinely accurate.
Most importantly, it forces the conversation into an area that wealthy people hope to avoid, which is how they actually accumulate wealth.  They would much prefer that we continue to be distracted by the complications of "gross income," "adjusted gross income," "taxable income," and all of the deductions and credits that make people's eyes glaze over.  The more they can muddy the water, the better able they are to get the public (and thus members of Congress) to say, "This is all a mess.  I know the rich are getting away with something, but it's all too hard to figure out.  I guess there's nothing we can do."

In expanding on my points from last Thursday, I will draw from two very sensible contributions on the comment board, one from a reader who goes by Unknown, the other from a reader who goes by Michael C. Dorf (who, unless Professor Dorf's identity has been taken over by a sock puppet, is the proprietor of this blog).  Both comments raise questions about how we measure and could decide to tax wealth.  Both enhance the discussion considerably.

Monday, June 14, 2021

Convergence and Tension Between Kendi's Anti-Racist Critique of Uplift Suasion and Sandel's Anti-Meritocratic Critique of Rising

 by Michael C. Dorf

Two recent prominent books respectively address two of our most pressing ongoing crises: Ibram X. Kendi’s How to be an Anti-Racist, like his grander and more sweeping earlier book, Stamped From the Beginning, proposes a blueprint for racial justice; Michael Sandel’s The Tyranny of Merit purports to explain the global rise of right-wing populism as exemplified by Donald Trump’s election in 2016. I discuss them together in today’s essay because of a striking similarity in their diagnoses and a tension between their prescriptions.

Before doing so, I offer some caveats. First, today’s essay is not a book review of either book. Each contains a great deal of material that I do not discuss. Second, although most of what I have to say is critical, I admire each work and found much with which I agreed. My interest here is chiefly in exploring surprising connections.

Friday, June 11, 2021

Judge Katzmann was a terrific judge and an even more terrific person.

 by Michael C. Dorf

This week, Robert Katzmann, former Chief Judge of the U.S. Court of Appeals for the Second Circuit, died. I didn't know Judge Katzmann all that well, but I was extremely fond of him. Whenever prominent judges or justices die, their former law clerks, friends, and acquaintances have a natural tendency to exaggerate their good qualities and minimize their negative ones. Indeed, that's a natural tendency with respect to anyone. The adage "don't speak ill of the dead" is rooted in compassion and good sense. That said, everything I know about Judge Katzmann leads me to conclude that lavish praise without criticism is, in his case, well deserved.

I'll leave it to others who knew Judge Katzmann better than I did to eulogize him more fully, as he surely deserves. I'll just say a few words about his place in contemporary jurisprudence.

Thursday, June 10, 2021

"True Tax Rates" Are Real and True, and They Are Now a Thing

by Neil H. Buchanan
By now, many Dorf on Law readers will have heard about a report detailing the incredibly low rates of tax that the richest Americans pay.  ProPublica received leaked IRS records for some of the wealthiest people in the world, including name-brand billionaires like Jeff Bezos, Elon Musk, George Soros, Michael Bloomberg, and Warren Buffett.  Although there are ways in which this story would be only medium-sized even if American constitutional democracy was not being destroyed before our very eyes, in at least one way it is an especially big deal.

The headlines and pundits are essentially all focused on the obvious fact that billionaires pay incredibly low rates of tax, which I will detail below.  I say "obvious" only because I am a tax law professor and economist, and people in my fields have known for quite some time what ProPublica's report details, although obviously we did not have the records for specific taxpayers.  Based on the political and media reaction, confirming just how extreme the inequity goes is definitely big-ish news.

And as I noted, there is what counts as a major breakthrough in the way that the report was framed.  Before exploring that point, however, there are a few matters that are worth discussing, all of which will show where the public debate on taxes now stands.

Wednesday, June 09, 2021

The Convergence of Vapidity Between Trolls and Conservative Politicians

by Neil H. Buchanan
Democratic Senator Joe Manchin continues to infuriate his colleagues (and a majority of the American public) by continuing to defend the indefensible.  I will get to the latest on the Manchin front shortly, but only as part of a larger discussion of a surprising trend that has emerged in U.S. politics over the last decade or so.
Specifically, it has become increasingly difficult to find a difference between the mindless assertions (I cannot honestly call them arguments) that we see from conservative politicians and the ravings of random online trolls.

Tuesday, June 08, 2021

The Absurd Formalism of the Mississippi Supreme Court

by Michael C. Dorf

The Mississippi Constitution provides for two means of amendment. The legislature can propose amendments or the People can do so via ballot initiative. State ballot initiatives--for good or ill--frequently change state law in ways that the ordinary legislative process does not. Drug policy is one area where we tend to see a divergence between popular opinion and legislator opinions. Thus, last November, Mississippi voters used the ballot initiative process to amend their state constitution to allow medical marijuana. Or so they thought. It turns out, the Mississippi Supreme Court recently decided, the Secretary of State acted unlawfully by placing the issue on the ballot.

Why? Because the state constitution says that for a petition to successfully place a measure on the ballot "signatures of the qualified electors from any congressional district shall not exceed one-fifth (1/5) of the total number of signatures required to qualify an initiative petition for placement upon the ballot." When that requirement was adopted, Mississippi had five congressional districts, but following the 2000 census, it was reduced to four. If you're any good at math, you'll realize that the state Supreme Court ruling means that not only was the medical marijuana initiative wrongly included on the ballot, but that the ruling effectively wiped out the possibility of amending the state constitution by ballot initiative. With only four districts, there will be at least one-quarter (1/4) of signatures coming from at least one district. And, take my word on this one, a quarter exceeds a fifth.

The Mississippi Supreme Court Justices in the majority are not bad at math. They're just bad at law. They realized that their ruling eliminated the ballot initiative, but they thought that was the inevitable result of the census and the text of the state constitution. Indeed, they had the gall to say that they had to rule as they did, because otherwise they would be changing the constitution. This is the sort of ruling that gives formalism a bad name.

Monday, June 07, 2021

The Law & Liberty Blog, Broken Clocks, and the Dangers of Philosopher Judges

 By Eric Segall

I subscribe to a website called the "Law & Liberty Blog" to keep abreast of what folks I normally disagree with are saying and what they think is important and timely. Pretty much every morning I receive an e-mail alert with the day's essays. Some of the contributors have an uncanny ability to dress up their personal political values and preferences in neutral sounding legalese. Occasionally, I respond to those kinds of posts on this page

That said, like a broken clock, every now and then an essay appears on the site that I find agreeable, persuasive, and important. So it was with a piece by Greg Weiner last Thursday titled "Why Would We Expect Philosopher Judges?" Weiner's essay is a response to a truly horrifying social media famous article in "The American Mind" by four folks calling for "A Better Originalism." That article was a conservative manifesto asking judges to pay much less attention to text, history, and precedent, and focus more on turning the United States into a theocratic, gendered society where judges impose a conservative moral vision on the country because...well because those are the political values of the four authors of that disturbing article. 

All you really need to know about that article can be summed up by the authors' tortured description of the American left as a group who wants "to establish, and to enforce ruthlessly, a scheme of 'identity politics' in all branches of American life. The American people are to be broken into a series of tribes, set against each other by color, by race, by 'sexual orientation.'” Why sexual orientation is in quotes is mystifying, as is the call for a "Better Originalism" whereby conservative judges decide cases conservatively regardless of prior law or the Constitution's original meaning.

But back to Weiner. He notes two problems with the call for a "Better Originalism." He questions the premise that all important constitutional issues are also judicial issues, and he wonders whether judges who have the power to impose their moral convictions on the rest of us will act like responsible judges. Both points are important and transcend the issues raised by the "Better Originalism" manifesto.

Friday, June 04, 2021

A Tempting, but False, Both-Sides Angle to the Republicans' Culture War Against Critical Race Theory

by Neil H. Buchanan

Republican legislatures across the country are frantically rushing through legislation banning the teaching of Critical Race Theory (CRT) in schools and colleges.  Several states have already adopted such laws, and more will soon join them.  In a recent column here on Dorf on Law, I critiqued Oklahoma's new law and concluded that it was likely to have its intended chilling effect on discussions of race in that state's classrooms, even though it could counterintuitively be used by clever instructors to increase the discussion of systemic racism in universities and schools.

Professor Dorf's column yesterday described this as "sidelash," a neologism that he defines as "reaction against gains made in another jurisdiction by a social/political movement that seeks change" (emphasis in original).  That is, the states in which Republicans are passing these laws are not the states in which CRT is likely to have much impact on the local populace in any case, but they are passing the laws in large measure as protests against social justice movements in blue states.  "You care so much about supposed American racism?" they ask.  "Well, in our state, we're going to prevent anyone from teaching our students that America is anything other than perfect."

But what is going on in those blue states against which red states are engaging in sidelash?  Are Democratic legislatures doing the same thing, but liberal?  Is this at long last a situation in which there is actual equivalence, not false equivalence, and where a bothsidesist approach is thus appropriate?  No, but understanding why not is still an interesting inquiry.  As most liberal things tend to be these days, this story is mostly about California.

Thursday, June 03, 2021

Why Do States with the Least to Fear Sometimes Take the Most Aggressive Measures? Backlash, Anticipatory Backlash, and "Sidelash" in a Federalist System

 by Michael C. Dorf

Quick! In what three states do you think educators are most likely to want to teach critical race theory (CRT) to impressionable young people? If you guessed Arkansas, Idaho, and Oklahoma, you win. Those were the first three states to pass laws banning or defunding CRT. Honorable mention if you guessed Tennessee, Texas, Georgia, or South Carolina, in which anti-CRT bills are pending. Each day brings news that another Republican-dominated state legislature has passed an anti-CRT bill, even though it's pretty obvious that one is more likely to see widespread teaching of CRT in blue states than in red ones. What's going on?

For the most part, the answer is simple partisan politics in an era when cultural issues have been nationalized. CRT is the latest culture-war issue that Republican elected officials are using to appeal to the white grievance mentality of their base, while Democrats either actively agree with CRT or see it as not so different from a traditional civil rights perspective as to warrant a campaign of unconstitutional censorship. We see anti-CRT bills passed in red states because Republicans have legislative majorities in those states; Republicans in blue states might introduce such bills, but they won't pass and thus won't garner much attention.

So most of the answer is simply tribal politics. But I want to suggest that there's another phenomenon going on as well. I'm even going to coin a term for it: sidelash.

Wednesday, June 02, 2021

Racism and Trump Voters: A Reassessment

by Neil H. Buchanan

In the immediate aftermath of Donald Trump's shocking non-majority win in 2016, everyone was struggling for answers.  Why did it happen?  Why did no one see it coming?  Who is to blame?  Is everything different forevermore, or did Trump luck into something that he could not possibly long survive -- politically or legally?  What did all of this tell us about American voters?

My research assistant recently came across one of my articles from the first few weeks after Trump was declared the winner of that election, "Reaching the Reachable Trump Voters," and she offered a short, pointed response: "How things have changed since 2016!"  This suggested to me that it might be worthwhile to go back and look at what I wrote, to see whether my arguments still make sense to me in light of the evidence at the time as well as in light of the evidence of the past four-plus years.

Short answer: Yes, things have changed, but not in any way that was not already at least somewhat predictable back then.  In particular, what did we know about those "reachable" Trump voters, and what do we know now?

Tuesday, June 01, 2021

Authenticity and Honesty in the Strange Case of "The Native Scholar Who Wasn't"

 by Michael C. Dorf

A recent story in The NY Times describes the non-comeuppance of one Andrea Smith--a Native studies scholar who: (a) for many years claimed to be Native American (principally Cherokee in particular); (b) turns out not to be; (c) was found out in her apparent fakery years ago; but (d) nonetheless managed to hang onto her career as a Native scholar. The story is well worth reading for its many twists and turns, which I won't recount here. Instead, I want to try to understand why Smith (currently listed as on sabbatical at the University of California-Riverside) has thus far managed to weather a storm of adverse publicity. 

I begin with a disclosure. I had a passing acquaintance with Smith in college, where she was a few years behind me and a fellow member of the parliamentary debate team. I heard from some of my friends and fellow debaters from that era; none of us recalls her ever claiming any Native ancestry back then, but that doesn't mean she didn't do so at the time, because none of us knew her all that well.

The Times story provides pretty solid evidence that Smith in fact has no Native ancestors. I suppose it's possible that she actually does or that she doesn't but sincerely albeit mistakenly believes she does. I know nothing about the matter besides what I read in the story and via some Googling, so for purposes of today's musings I'll simply assume arguendo that Smith has been fraudulently misrepresenting herself as Native American for the better part of three decades.

Let's examine the reasons two universities gave for not dismissing or otherwise disciplining Smith and another "ethnic fraudster." I'll then offer a couple of hypotheses to explain Smith's gentle treatment by her employer.