Whose Court is it Now?

 by Michael C. Dorf

It's almost August, and that means that next week I'll be participating in the annual Supreme Court Review sponsored by the Practicing Law Institute. If you need CLE credit, this is an informative and entertaining way to get it. As always, I'll be joining a star-studded set of panelists. In addition to counter-punching throughout the day, I have primary responsibility for talking about three cases that I and my co-bloggers have already discussed here at DoL. Accordingly, rather than preview my remarks on those cases, I thought I'd take this opportunity to preview my comments on the overview panel. 

I'll take as my point of departure a recent CNN opinion essay by Jeffrey Toobin. In it, Toobin argues that Clarence Thomas is the de facto Chief Justice of the current Supreme Court. Why? Toobin offers the following chain of reasoning:

(1) The only thing that distinguishes the Chief from the Associate Justices is the Chief's power of assignment when the Chief is in the majority;

(2) With John Roberts more likely than any of the other Republican appointees to join the Democratic appointees on the short end of a 5-4 split, that frequently leaves Thomas, as the most senior Associate Justice with the assignment power in the most important 5-4 cases.

(3) Thus, Thomas, not Roberts, has the more important assignment power and is thus the de facto Chief Justice.

Here I'll dive into what's missing from that syllogism.

Veganism, Year Thirteen: So Much Good News, So Much Bad

by Neil H. Buchanan

 

[Note on August 5, 2021: I have now added the Heller, Keoleian, and Rose piece to the list below.]

 

Each summer, somewhere near the date that I first decided to become a vegan (July 24, 2008), I write one or more of what I have come to call my veganniversary columns.  For those who might be interested, here are the links to previous years' columns: 2020 (plus followup), 2019 (plus followup), 2018, 2017, 2016, 2015, 2014, 2013, 2012, 2011, 2010, 2009, and the original announcement in 2008 (plus followup).

 

With few exceptions, I tend to focus on the day-to-day issues that one deals with as a vegan: challenging conversations from family and friends (and even strangers, who are suddenly quite worried about my protein intake), trends in how easy it is to find restaurants with good vegan food (including, of course, the growing number of exclusively vegan restaurants), the favorable trends in the economics of veganism, and so on.

 

Often, these columns grow out of my having noticed a news article, commentary, TV show, or movie that directly or indirectly raises an interesting issue regarding veganism.  Sometimes, I riff on columns written by Professors Colb or Dorf, such as yesterday's column by Professor Dorf (which was only partially about veganism).

 

This year, I have found myself overwhelmed by the number of different possible inspirations that I have come across for the 2021 version of my veganniversary column.  As additional sources of inspiration continued to arrive, I held out hope that I could combine them into a coherent column under a common theme.  I no longer believe that that is possible, or even that it would be the best way to create this year's column.

 

Instead, I decided to reduce my commentary this year in favor of simply providing links to many of the sources that might each have inspired a column.

The good news is there is so much good news, with veganism being treated more respectfully in mainstream publications (far less "Stay with me here while I describe these loopy Granola types, folks" in these stories), impressive advances in the production of vegan food (in particular the types of foods that people declare to be The Reason that they could never be a vegan, especially cheese), and on and on.

The bad news, of course, is that there are still billions of innocent and defenseless non-human creatures who are being tortured and killed for no good reason.  It breaks my heart.

In any event, here are a few of the articles that I have seen lately that provide interesting insights on the state of veganism today.  I do not endorse everything in each one, of course, but I am listing them here simply to allow interested readers to see what has been written and said about veganism recently.  It is an exciting time.

 

Between Tamago and Potemkin

 by Michael C. Dorf

There's an episode of Curb Your Enthusiasm in which Larry arrives at the new house of his manager Jeff and Jeff's wife Susie, who offers Larry the house tour (NSFW: profanity). Larry declines: "No that's okay, I get it.  . . . You know, it's bedrooms, bathrooms, I get it." Susie (played by the great Susie Essman) is incensed, but of course Larry is right. If you move into a new home, you're excited about the closets, the bathroom fixtures, the bay window, etc., but to a visitor, it's all the same.

So too with college campus tours. With one daughter about to start her sophomore year of college and the other about to start her senior year in high school, I have taken more than a handful of campus tours over the last several years. They are pretty pointless. As Larry might say, "I get it. It's buildings, the library, a statue, I get it." A few college campuses are distinctly ugly, but most have some stately old buildings, a pretty quad, a quirky tradition involving a tree, a mascot, or field, and some new gym or dorm that the admissions office instructs the perky student tour guides to highlight. Choosing where to apply based on the tour seems like a bad idea relative to choosing based on hard data (like majors offered, endowment size, student/faculty ratio, student body diversity, financial aid, grad school and job placement rates, etc.) as well as personal factors (like proximity to family or strength in particular subject areas).

Yet there are so many good colleges and universities that a reasonably ambitious applicant will have already compiled a longish list that hits all of the criteria or might take a tour after being admitted to more than one of their top choices, so the campus visit can serve an important function at the margin. It is thus not irrational for prospective or admitted students to place some weight on a campus visit nor for the colleges and universities to try to sell themselves during these visits.

Accordingly, I was shocked when, on one tour at a very highly regarded institution, my daughter and I were subjected to the single worst presentation I have ever experienced from an adult professional. I'll describe it briefly and then connect it to a somewhat broader account of how various institutions and actors go about marketing themselves.

How Is It Possible That the Debt Ceiling Is a Thing Again?

by Neil H. Buchanan

 

"Just when I thought I was out ... they pull me back in!"  OK, I am certainly no Michael Corleone (as far as anyone knows), but this classic quote captures how I have felt in the last few days.

 

Earlier this year, I almost could not believe it when I saw that congressional Republicans had begun floating the idea of again using the debt ceiling to extort concessions from a Democratic president.  In the ensuing obligatory Verdict column on April 29, I wearily argued that Joe Biden might be the president who would finally put this all to rest.  Mostly, however, I hoped that the Republicans would not try to bring back their debt ceiling madness at all.  I am tired of the inanity of it.

So much for that hopeful thought.  Last week, Mitch McConnell announced that Senate Republicans will not agree to adjust or re-suspend the debt ceiling before (or after) it is scheduled to come back to life on July 31.  Earlier today, I published a new Verdict column responding to the new reality that the Republicans are indeed going to take hostages with the debt ceiling again.

I have a few thoughts to add here, but the important thing to remember is that this is yet another situation in which Republicans have not only thrown out all norms and any sense of restraint but are acting with utter disregard for the law.

 

If any president were ever to be forced to face a binding debt ceiling, and if he or she chose (wrongly) to refuse to pay the nation's bills in response, that would be a matter not of reducing government debt in the future but of failing to honor obligations that already exist based on past decisions, as I explain below.  That is the opposite of fiscal responsibility.

What more is there to say?

Partisan Politics, Legal Realism, and the Myth of the Unitary Executive

 By Eric Segall

"Only in an Authoritarian Regime is the President Above the Law"

                                                                                    Professor Victoria Nourse

At the Law & Liberty Blog last week, Professor John McGinnis penned an homage to the Roberts Court decisions over the last few years invalidating how Congress has structured various administrative agencies. In a series of complicated cases, the Justices held that the President must be able to fire agency heads and other officials unconditionally and laws to the contrary, passed by the people's representatives, must give way. These opinions flow directly from the unitary executive theory developed by administrative officials in the Ronald Reagan Justice Department during the 1980's. 

What makes these decisions so fascinating (and wrong) is that the Constitution's text does not  support such a view, there is no persuasive historical evidence underlying the theory, and as a matter of policy it is a terrible idea to give one person so much power, as the Framers surely understood. What most explains these decisions, as even McGinnis implicitly concedes, is politics pure and simple. Libertarian and conservative judges want to limit the administrative state to better free businesses from regulation and so they do so regardless of whether there is any legitimate legal reason for believing the President has to retain such king-like authority. The title of McGinnis's piece is revealing: "Will the Court Tame the Administrative State?"

Addicted to Power, Allergic to Principle (a Dorf on Law classic)

Note to readers: Continuing our brief mid-summer break here on Dorf on Law, we offer this classic column from October 2016, during the last stages of the general election campaign.  In light of House Republicans' actions thus far in 2021, what I wrote about below is almost adorably innocent by comparison.  Sometimes, looking back provides a disquieting reality check.  -- Neil H. Buchanan

 

 

by Neil H. Buchanan

 

I have been doing everything possible not to write -- or even think -- about the new depths to which the Trump campaign has lowered this country.  What we now know about Donald Trump's actions, words, and attitudes toward women is somehow both shocking and completely unsurprising.  This is no longer about Trump being the most unqualified candidate ever to run for the presidency.  This is about human decency.

A lot of Republicans know this.  It is hard to believe that it took the most recent outrage to convince some people to give up on Trump, but better late than never.  There was, at last, a panicked stampede to the exits immediately after we first saw the video in which Trump bragged about being able to sexually assault women.

The problem is that many Republican officials remained in Trump's corner, and some of those who joined the initial stampede have actually doubled back.  Watching those returnees squirm is something to behold.  My favorite line, from Nebraska's Senator Deb Fischer, is that even though she called on Trump to step aside for the good of the country, he ignored her advice.  So she still supports him.  Another profile in courage.

Trumped Up Charges (a Dorf on Law classic)

Note to readers: The column below was first published just over six years ago, on July 13, 2015.  It is, as far as I can tell, the first column on Dorf on Law in which Donald Trump was the focus of analysis.  (One of my columns the previous week mentioned him, but only in passing.)  Please enjoy this classic column, taking us all back to a more innocent time.  -- Neil H. Buchanan

 

 

by Michael Dorf
 

I begin with a confession. From fall 2002 through the summer of 2008, I lived in a building that had the word "TRUMP" displayed above each of the two main entries. It was one of a number of buildings that a real estate development group had built on the west side of Manhattan. My understanding at the time was that although Donald Trump was the front man for the developers, he put up only a small fraction of the money for the development, most of which came from other investors. And then the individual apartment units were sold, so that Trump owned virtually none of the building. I say "virtually" because he or another family member may have owned one or more units, but in any event, their ownership interest was relatively small. There were over 400 apartments in the building. During the nearly six years I lived in the building, "the Donald" was sited on the premises on only two occasions, but neither time by me.

Although he had not yet made a name for himself as a xenophobe, during my period of residency Trump was already well established as an egomaniac. For example, the following statement, which I just pulled from his company's website bio, is typical of the pronouncements he has long made about himself: "Donald J. Trump is the very definition of the American success story, continually setting the standards of excellence while expanding his interests in real estate, sports, and entertainment. He is the archetypal businessman – a deal maker without peer."

I found it embarrassing to live in a building that boldly announced to the world its connection to the Trump empire. Trump's management company was in charge of building maintenance, and truth be told, the staff did a fine job--better than the management companies in other buildings I had lived in. But given that Trump didn't own the building and that NYC buildings, if they have names at all, are typically not named for the management company, I saw no reason why my home and the homes of the hundreds of other residents had to be branded with the Trump name.

Accordingly, I made inquiries about removing the Trump name from the facade. I was told that a few others had also sought its removal but that this was a bad idea because having the Trump name made the building and its units more valuable. I found this hard to believe until I saw a market analsyis of Trump-branded properties and comparable properties that did not bear his name. Other things being equal, the Trump name added value. Apparently, people associated it with quality.

How could this be? I developed two (non-exclusive) hypotheses. First, suppose you are in the market for an apartment. You think (for whatever reason) that Trump only puts his name on high-quality properties. You shop around and you are trying to decide between an apartment in a Trump-branded building and another building. Even though you think that the apartments and buildings appear to be of equal quality, you believe that buildings and apartments often have hidden aspects, and so you are willing to pay a Trump premium for the apartment in the Trump-branded building. Second, many purchasers of apartment units in NYC buildings are foreign investors who don't even see the units before purchasing, and so they may be paying a Trump premium because they are buying from afar. Although I had chosen to live in the building despite its bearing the Trump name, it appeared that more people chose to live there because of the Trump name.

Various recent news stories report on how Trump's remarks about undocumented immigrants from Mexico have hurt his business, with various companies canceling collaborations with him. My question is whether the damage to the Trump name will cause a diminution in (or reversal of) the Trump premium for individuals. Undoubtedly, there will be people who, prior to the Donald's presidential announcement, would have paid a premium to stay in a Trump hotel or live in a Trump apartment but who will now regard these prospects as less appealing. And given constant supply, reduced demand should result in lower prices. But whether the demand is reduced sufficiently to turn the Trump premium negative remains to be seen.

If it does, then Trump's troubles could pose an existential threat to his empire. As I understand the business model, a great many of Trump's real estate ventures are like the building I lived in: Other people provide the capital and then they essentially pay Trump a fee to be able to associate their property with his name. Once that name carries a negative connotation with the public, no one not already under contract to pay for the use of his name will continue to do so. Eventually, the Trump name will come off the buildings. 

When Does Government Act Through Private Actors? Texas Private Attorney General Enforcement Against Abortion Providers & Trump's Suits Against Big Tech

 by Michael C. Dorf

A new Texas law, S.B. 8., forbids abortions after six weeks of pregnancy. It's obviously unconstitutional under existing Supreme Court precedent. Whether the relevant precedents will remain on the books in a year remains to be seen. In the meantime, S.B. 8 is unusual in relying entirely on private enforcement.

S.B. 8 expressly bars public enforcement. It gives to "any person, other than an officer or employee of a state or local governmental entity," the right to bring a lawsuit to enjoin forbidden abortions and to collect a bounty for abortions performed in violation of the law. As Dean Amar and Professor Mazzone explain in a recent Verdict column, the law contains that unusual enforcement mechanism for the obvious purpose of preventing doctors, clinics, and women from bringing lawsuits in federal court to categorically enjoin S.B. 8's enforcement. Instead, doctors or others sued under S.B. 8 will be relegated to raising the constitutional right to abortion as a defense in state court. Such a forum will likely be less sympathetic than even the Trump-packed federal courts. Meanwhile, in such a state court case of the constitutional right arising as a defense, even a sympathetic state court judge (or one simply willing to follow the law as declared by SCOTUS) would not be able to grant the sort of broad relief that a court faced with a class action could.

Dean Amar and Professor Mazzone offer a few potential workarounds, including the possibility of a lawsuit against Texas state judges. And indeed, they note at the end of their column that as they were going to press, just such a suit was filed in federal district court in Austin by various Texas-based abortion providers.

Will that suit succeed? Perhaps. However, as Professors Tribe and Vladeck explain in a NY Times op-ed, there is some precedent to overcome: twenty years ago, the Fifth Circuit held that plaintiffs could not bring suit against Louisiana executive officials to challenge a similarly structured abortion law, because those officials had no role in enforcing it. By contrast, state court judges do play some role in giving effect to S.B. 8. Professors Tribe and Vladeck think that should suffice to distinguish the Texas case, and I agree. However, they, as well as Dean Amar and Professor Mazzone, acknowledge that there is no guarantee.

Meanwhile, I'd like to raise a related point about state action. Some readers might be wondering why there is even a constitutional defense available to a doctor in a case in which a pro-life plaintiff sues the doctor in state court under S.B. 8. After all, the private plaintiff isn't a state actor. True, the judge is, but as a general matter the fact that a judge enforces a private right of action doesn't suffice to create state action. Addressing that objection will shed further light on what's wrong with Donald Trump's lawsuits alleging that Facebook, Twitter, and YouTube are state actors for First Amendment purposes.

What a Difference Six Months Make

by Neil H. Buchanan

Six months ago today, Joe Biden took the oath of office and became President of the United States.  (He actually would have become president at noon that day without taking the oath, but no matter.)  At the time, the only reasonable emotion to feel was relief, especially because of the insurrection that had taken place only two weeks before.  Even setting that trauma aside, however, finally having Donald Trump out of office was a very big deal.

Although I was tempted to devote today's column to describing an alternative time line in which Trump stayed in office, instead I will discuss what should have been obvious before Biden moved into the White House.  In particular, I want to explore why non-Republican pundits so often refuse to recognize the extremism of this millennium's version of the Republican Party.  This tendency has never made sense, and it is especially interesting (in a frustrating way) to look in the rear-view mirror at a particularly good example of this naivete.

Telephone Pole Cameras and Long-Term Government Surveillance

by Matthew Tokson

In a decision issued a few days ago, the Seventh Circuit held that the government can warrantlessly use telephone pole cameras to constantly monitor any home for at least one and a half years. While the opinion was both thoughtful and thorough, with many citations to legal scholarship including my own, the holding is aggressively anti-privacy. It would permit the government to monitor any or all residences pervasively and at little cost, and eliminate the zone of privacy that typically surrounds the home. 

Courts are split over pole cameras, and that split may soon deepen after the First Circuit rules en banc in a pending pole camera case. And the pole camera issue seems ripe for Supreme Court review, with relatively clear-cut facts and a form of surveillance that threatens the sanctity of the home. This post previews the potential future showdown over pole cameras by examining the Seventh Circuit’s decision and the broader issue of long-term video surveillance of the home.

Selective Prohibitions on Cruelty to Animals and a Thought on Targeting in Equality Cases

 by Michael C. Dorf

My latest Verdict column discusses a recent certiorari petition seeking to invalidate the application of a federal cockfighting ban to Puerto Rico. I argue that the Supreme Court should deny cert because the First Circuit rightly held that the ban falls within the power of Congress to regulate interstate or foreign commerce. That court did not reach the question whether, as applied to Puerto Rico, the law is also a valid exercise of the Territories Clause of Article IV, Section 3. I believe that it is, notwithstanding the suggestion by Justice Sotomayor (in a concurrence last year in Financial Oversight and Management Board for Puerto Rico v. Aurelius Investment) that the 1950s Compact between the U.S. and Puerto Rico permanently divested the former of some of its power with respect to the latter. I think she's wrong about that, but regardless of one's views about the question, its awkward relation to the Commerce Clause issue makes the cockfighting case a poor vehicle for addressing the Commerce Clause question--which is the only one raised by the cert petition.

So much for the powers of Congress. My Verdict column also addresses a question of ethics: whether it is not hypocritical to ban a marginal practice that involves cruelty to a few thousand chickens while billions of chickens are cruelly raised and slaughtered to feed nearly all the members of Congress and their constituents? I conclude that it is hypocritical but, citing Professor Colb's 2007 discussion of the Michael Vick case, that vegans and other animal rights activists should not therefore oppose these small symbolic measures; instead, we should use them as a wedge to open up discussions that challenge the much more widespread practices.

I reach that conclusion even though I acknowledge that the cockfighting ban's "application to a territory in which most inhabitants are members of a traditionally disadvantaged ethnic minority . . . raises troubling questions about America’s colonial legacy." Here I want to dive a little deeper into that point. I'll eventually shift my focus to religious exceptions. I hope the discussion will be timely in light of this past Term's decision in Fulton v. Philadelphia, which suggests that the meaning of free exercise of religion and religious discrimination is now somewhat up for grabs.

Reinstatement, Coups, and the Ongoing Threat of Right-Wing Violence

by Neil H. Buchanan

 

Apparently, the turnaround time for the trade book market is roughly six months, as we are now inundated with high-profile publications that offer accounts of the end of the Trump presidency.  Mid-summer has typically been a news desert, even while Donald Trump was in the White House; but not this year.  Now, we are being invited not only to immerse ourselves again in the trauma of those four years, but we are being overwhelmed with previously unreported, stunning stories showing that things were even worse than we thought.

I am not going to try to keep the various books straight here, because readers can quickly and easily cross-check anything they find interesting.  In any case, I did read a book excerpt that lays the blame for Trump's election lies at the feet of a soused Rudy Giuliani on election night, with the soon-to-be-disbarred ex-mayor telling Trump simply to declare victory.  It is a bit much when the authors quote someone who bizarrely compares Giuliani to a "cool uncle ... in a Corvette," but it actually is believable that Trump would not have thought to do this without Giuliani's rantings.  Maybe the inveterate carnival barker would have come up with it on his own, but somehow I doubt it.

Does any of this matter?  An accurate historical record is important for all kinds of reasons, of course, and identifying everyone who is culpable for creating and worsening one of the worst stretches of American history is certainly an essential public service.  What about the future?  What might still happen, and can it be stopped?

Normalizing the Little Lies That Support the Big Lie

by Neil H. Buchanan

 

I confess to remaining interested in news about a range of policy and legal matters.  Indeed, I still write about many of them, as I did last week in discussing the first indictments from the Manhattan DA of Trump associates.  Is it good news that, say, the Democrats seem to have agreed to move forward with an ambitious infrastructure plan via reconciliation?  Sure.  Should we still care about income redistribution, the environment, and everything else?  Yes.

Even so, all of these issues must increasingly be seen as a matter of watching the proverbial rearrangement of deck chairs on the Titanic.  Whatever Democrats accomplish on policy now will not matter -- and most of it will be reversed in short order -- unless democracy is saved.  And although I salute the Democrats in the Texas legislature for their ingenuity and energy in fighting against the latest round of anti-democratic legislation in their state, they are the first to admit that their efforts are merely a matter of buying time.  National legislation is needed, and even as the clock ticks toward midnight, Senators Manchin and Sinema continue to live in a fantasy land.

 

Doom and gloom is thus still the order of the day on Dorf on Law.  Evidence-based doom and gloom, yes, but doom and gloom nonetheless.

 

The unmissable ongoing problem is that state-level Republicans are singlemindedly pushing through voter suppression laws, laws that also include provisions allowing their partisans to reverse election results.  This is all based on the Big Lie that the 2020 election was stolen from Donald Trump.  But for the Big Lie to have its maximum impact, it has to be backstopped by little lies that make it possible for some people to publicly disagree with Trump's deranged conspiracy theories even while supporting the larger Republican agenda of turning America into a one-party state.  Consider one pernicious example.

 

Donald Trump's Constitution: First Amendment Edition

 by Michael C. Dorf

In the fall semester, in addition to my usual first-year survey course in constitutional law, I'll be teaching an upper-level seminar titled "Donald Trump's Constitution." Here's the brief version of the description I posted for students considering enrolling:

Donald Trump’s Presidency raised many issues about the meaning and wisdom of the Constitution. This seminar will explore some of them, framed by two background questions: (1) To what extent was Trump and the movement he led (and continues to lead) a product of the U.S. constitutional system versus a local manifestation of a global phenomenon? (2) To what extent did Trump’s break with various norms expose weaknesses in the constitutional system, or do all constitutional systems depend for their survival on good-faith compliance with extra-legal norms?

I'm still tweaking the reading list, but given the latest collision between Trump and the Constitution--his absurd First Amendment class actions against Facebook and CEO Mark Zuckerberg, Twitter and its CEO, and YouTube and the Google/Alphabet CEO--I thought I'd take this opportunity to map out some thoughts on Trump, Trumpism, and the First Amendment. Before doing so, however, I'll say a few words about what I hope to do with the seminar and why.

Sovereign Immunity, Judicial Aggression, and the Rule of People not Law

 By Eric Segall

The competition is tough, but the Eleventh Amendment still might be the most misunderstood amendment to the Constitution. 

                                                                                            Will Baude & Steve Sachs 

When can states be sued in federal court for violating federal law, assuming a valid cause of action under either a statute or the Constitution? This question has major implications for our federalist system. The possible answers are always, never, or sometimes, and the stakes of the answer are incredibly high. Too much accountability could expose the states to federal control in ways that could damage their finances and sovereignty, but too little accountability could jeopardize the supremacy of important federal laws and the Constitution. Sadly, the Supreme Court’s answer to this important question (sometimes) is incoherent and terrible policy as well. This term, in Penn East Pipeline v New Jersey, the Court doubled down on its own incoherence.

The New Crazy and the Old Crazy -- Attacks on Democracy and Attacks on Taxes

by Neil H. Buchanan 

 

As it happens, this week was the tenth anniversary of the publication of my first column on Verdict.  As frequent readers of Dorf on Law know, Verdict publishes bi-weekly columns by a roster of columnists that includes Professors Sherry Colb and Michael Dorf, and we often use our Dorf on Law space to riff on some aspect of our Verdict columns.  Thus it shall be today.

 

In today's column, "The Intensifying Madness on America’s Political Right: A Decade-Long Perspective," I note that my first Verdict column discussed the debt ceiling crisis that the new Tea Party-fueled House Republican majority was then in the process of creating.  I had already written multiple pieces on Dorf on Law discussing the debt ceiling, and I was genuinely amazed that the Republicans had rushed into that precinct of Crazytown, given the dangerous and self-defeating nature of their strategy -- to say nothing of how much it annoyed their moneyed patrons.

But my purpose in today's column was not to discuss the content of the debt ceiling nonsense.  Instead, I described how that particular bit of political extortion was the leading edge of the insanity that has subsequently engulfed the Republican Party.  I described the debt ceiling crisis as the beta version of the New Crazy, and the general release version of the New Crazy is inciting and then justifying political violence, along with a full-on rejection of representative democracy.

I also, however, described the Old Crazy, my example being Republicans' longstanding effort to prevent the government (via the tax cops, the IRS) from collecting taxes from rich people, the law be damned.  Because the Old Crazy is again rearing its ugly head, with conservative activists trying to kill added funding for the IRS in the proposed bipartisan infrastructure bill, it is worth taking some time here to say a few things about where the Old Crazy fits into the Republicans' current insanity.

Condo Owners and Climate Myopia

 by Michael C. Dorf

"Success has many parents, but failure is an orphan," goes a familiar adage made popular by President Kennedy (though its actual provenance is more complex). The sentiment is correct as a description of people's eagerness to boast and reluctance to accept blame. As an attribution of responsibility, however, it is false. Failure, especially catastrophic failure, is typically the result of many people's missteps.

That is no doubt true about the tragic collapse of Champlain Towers South in Surfside, Florida. Investigations now underway will determine whether lax government oversight was partly to blame. To the extent that global warming contributed to the conditions that made the building vulnerable, humanity itself bears responsibility for our failure to act sooner and more aggressively to mitigate the damage. (More about that in my conclusion.) For now I want to focus on another locus of responsibility: the very nature of a condominium association and its relation to the board.

A recent article in The New York Times details the conflicts between the condo board and the building unit owners over the last several years. An outside engineer hired by the board estimated that the building needed $15 million in repairs. Unit owners' individual assessments were in excess of $100,000. Animosity ensued, leading to board turnover. Repairs were delayed. With the exception of the tragic outcome, reading the story gave me a sinking feeling of recognition, because I served as treasurer and then as president of a condo board in Manhattan two decades ago.

Stability as Impediment to Democracy

 by Michael C. Dorf

My latest Verdict column picks up where Prof Buchanan and I each left off last week in talking about the end-of-Term SCOTUS cases. I argue in the column that the outcomes of Americans for Prosperity Foundation (APF) v. Bonta and Brnovich v. Democratic National Committee are not especially troubling but that each case is highly problematic for what it portends about where the Court's conservative super-majority is willing to go. APF portends the potential invalidation of campaign finance disclosure obligations, while Brnovich heralds further enthusiastic SCOTUS acquiescence in GOP-state-legislature-led suppression of minority and Democratic voters.

That said, as Prof Buchanan, other observers, and I have been warning for months now, the mortal threat to American constitutional democracy is less from laws that restrict voting than it is from the state laws that assign to state legislative officials themselves or reliable Republican flunkies the power to tally, recount, and otherwise "find" votes. Nothing in Brnovich or any of the Roberts Court's other election-related rulings indicates a willingness to save American democracy from these efforts. The most for which one may be able to realistically hope is that the Court does not aid in further sabotaging it--and that's likely not going to be enough.

There you have our usual doom and gloom. Now I want to pivot to a different kind of doom and gloom.

TrumpWorld v. Those Pesky, Pesky Tax Laws

by Neil H. Buchanan 

 

Last week, the Manhattan DA's office (working with the New York State Attorney General's office) charged various entities in TrumpWorld with a large number of felonies, and surely there are more to come.  Some of the charged crimes involve tax fraud, which is directly in my academic remit (as the Brits say).  The contours of Donald Trump's response -- not exactly a "defense," at least in any legal sense of that word -- are now becoming clear, and they are unsurprisingly absurd.

I will begin here with an overarching nontax issue relevant to the indictments, with the remainder of the column devoted to tax matters.  Bottom line: the charged crimes are serious, the crimes themselves are in no way sophisticated or borderline cases, and pursuing these charges is essential to the rule of law.

Originalism as Myth

 By Eric Segall

Professor Stephanie Barclay is an associate Professor of Law at Notre Dame. She represents a newer, younger breed of originalist scholar and recently explained why she favors originalism in a longish op-ed in Utah's "longest-running news organization...and the state’s oldest continuously operating business." 

I've met Professor Barclay and she is a charming, smart, erudite academic who has written excellent scholarship about law and religion and other constitutional matters. So there is nothing personal when I say that her op-ed reflects accurately the current sorry state of dominant thought among many originalist academics. Her op-ed shows how originalism these days is chock full of myths.

Voting Rights and Partisan Power Grabs

by Neil H. Buchanan 

 

Suppressing votes has become the Republican Party's signature obsession, continuing a decades-long pattern of denying the franchise to people of color and others who might dare to try to elect Democrats.  Although voter suppression is in no way new for Republicans, the Trumpified version of that party has now also decided that they will empower their own partisans simply to set aside disappointing election results, passing laws that remove neutral arbiters from the positions that determine who received more votes (out of those that Republicans will allow to be cast in the first place).

This is a catastrophe of the highest order, and there are no dissenters in the national Republican Party.  Senator Susan Collins, who shocked everyone by retaining her seat in the 2020 election, is supposed to be the least extreme Republican in Congress.  That might well be true, but she is delivering talking points that would make Strom Thurmond beam with pride, arguing that Democrats are wrong to try to protect the right to vote through federal legislation.  States' rights!

 

What could go wrong when state governments, especially in the South, start disenfranchising their citizens?  This is an existential threat to constitutional democracy, yet the most "reasonable" Republican takes a very public role in justifying the rigging of future elections.

 

And as Professor Dorf pointed out yesterday at the end of his discussion of Brnovich v. DNC, the six-justice conservative majority of the Supreme Court is showing that it will fully back the people who placed them on the Court:

[A]t a time when we will likely need the federal courts to stand up to the Republican Party's nationwide effort to undercut democracy, Brnovich shows that the Republican-packed Supreme Court is more likely to abet that effort.

I have nothing to add about Brnovich, at least not today.  Instead, I want to discuss here what it means to be nonpartisan in setting up voting systems.  Every change to voting systems is not equal, and proposed changes must not be derided or dismissed simply because they might help one party or the other.

What Was/Is at Stake in Brnovich?

 by Michael C. Dorf

I don't usually post "hot takes" on Supreme Court opinions, preferring to spend at least several hours and often several days to digest them before blogging about them. I'll depart from that practice today, aware of the risk that I'll therefore make more mistakes than usual. So herewith are my hot takes on Brnovich v. DNC:

(1) The not-just-ideological-but-partisan division in this case (and in the other case handed down today, Americans for Prosperity Foundation v. Bonta) will substantially undercut the narrative that had been emerging of a Court that was taking pains to forge cross-ideological alliances. For example, this NY Times article a week and a half ago was headlined "The Supreme Court’s Newest Justices Produce Some Unexpected Results." The sub-headline was "In the term so far, including two major decisions on Thursday, the court’s expanded conservative majority is fractured and its liberals are often on the winning side." But Adam Liptak, who wrote the piece, wisely hedged (and was nice enough to quote me). The story concluded: 

That may change in the next two weeks, as the court issues decisions in the remaining 15 cases of this term. In any event, said Michael C. Dorf, a law professor at Cornell, this term’s coalitions may be fragile.

“More than in most recent terms, Chief Justice Roberts was able to present a credible picture of a nonpartisan court, with Justices Breyer, Kagan, Kavanaugh and Barrett in particular seeming to go out of their way to forge centrist alliances,” Professor Dorf said. “However, the justices appear to have reached a truce rather than a lasting peace. With high-profile abortion and gun control cases already on the docket for next term, ideological disagreements will likely re-emerge sooner rather than later.”

I ought to have mentioned voting rights too. And I was too optimistic in suggesting that the era of good feelings would last into next Term. It's over already.