Thursday, September 23, 2021

An Arbitrary Line's Arbitrariness is a Feature, Not a Bug (Mississippi Abortion Case Edition)

 by Michael C. Dorf

On December 1, the Supreme Court will hear oral argument in Dobbs v. Jackson Women's Health Organization, in which Mississippi asks for either an outright overruling or serious curtailing of the cases recognizing a constitutional right to abortion. On Monday of this week, amicus briefs in support of respondent were due. Just as it received a boatload of amicus briefs decrying abortion in July, so on Monday the Court received a whole lot of briefs urging the justices to affirm the lower court decision invalidating Mississippi's ban on most abortions after (what it defines as) 15 weeks' gestational age. Today I'll take as my point of departure the amicus brief with which I'm most familiar--one filed on behalf of me and 12 other constitutional law scholars (Lee Bollinger, Erwin Chemerinsky, Sherry Colb, Dan Farber, Joanna Grossman, Leah Litman, Martha Minow, Jane Schacter, Suzanna Sherry, Geof Stone, David Strauss, and Larry Tribe).

The core of our argument goes like this: Mississippi is plainly wrong in its contention that the abortion right has no connection to other rights the Court has recognized, and therefore repudiation of the right on that basis would jeopardize all unenumerated constitutional rights, including to marriage, against sterilization, and against forced abortions. Likewise, the Court's backup argument that the viability line should be abandoned as unprincipled and unworkable is wrong; there are sound reasons in principle for the line as an original matter, which is further supported by stare decisis.

Although we argue forcefully that viability is not an arbitrary line, here I want to argue that even if it were arbitrary, that would not be a reason to abandon it. Our brief doesn't make this argument exactly, but it gestures in the same direction when we say this:

Mississippi’s unfounded complaints about arbitrariness of the viability line ring hollow considering the lawlessness and confusion that would follow overturning Roe and Casey, as the State implores this Court to do. Such a reversal would lead to inconsistent directives and would leave women and indeed, the general public, in the dark about the state of the law . . . .

Now I'll elaborate.

Tuesday, September 21, 2021

Trump's Flailing Coup Attempts and the Fire Hose of Constitutional Disasters

by Neil H. Buchanan

It appears that I will be part of an odd footnote to an odd footnote to history.  As Professor Dorf described in yesterday's column here, one of Donald Trump's legion of Giuliani-like lawyers apparently wrote a memo shortly before the January 6 insurrection, detailing a legal strategy that (in Trumpists' minds, anyway) would have allowed them to keep Trump in office after January 20.
 
The one and only citation in that memo was to a September 20, 2020 Verdict column that I co-authored with Professors Dorf and Laurence Tribe, meaning that our names are embedded in a seditious legal fiction that will surely end up in the national archives.  Yay us?  Posterity will never forget!

Professor Dorf has already explained the lowlights and eviscerated the pathetic legal analysis that Trump's hack (and now-former law professor) cooked up, so there is no need to get back into that here.  Instead, I want to explain the one thing that the memo's author managed to get right about our column (in which we debunked a myth about the Twelfth Amendment), even though his citation to it was purely for the purpose of saying, "Hey guys, as a bonus, we can poke Larry Tribe with a sharp stick!"

After exploring why everyone seems to misunderstand the Twelfth Amendment, I will broaden the discussion to note in wonderment the sheer volume of previously unexplored constitutional gaps that have been exposed by the Trump/Republican radicalization of the past several years.  We now find ourselves drenched in increasingly insane constitutional and legal absurdities.
 

Monday, September 20, 2021

How An Essay by Neil Buchanan, Laurence Tribe, and Me Figured in Trump's Effort to Destroy the Republic

by Michael C. Dorf

You really can't make this stuff up. Here's the latest revelation from the forthcoming Peril by Bob Woodward and Robert Costa: In the days leading up to January 6, Donald Trump enlisted now-former-Chapman-law-professor John Eastman to try to persuade Mike Pence that as Vice President he had the unilateral authority to throw out the electoral votes of enough states to give Trump the lead and then declare him the winner of the election. CNN reports that Woodward and Costa retell details of a January 4 Oval Office meeting in which Trump said to Pence: "You really need to listen to John [Eastman]. He's a respected constitutional scholar. Hear him out." Fortunately, Pence did not listen to Eastman, instead receiving sound and sober advice from his fellow Hoosier VP Dan Quayle, who, for all his shortcomings, is apparently a hero of the American republic.

Meanwhile, CNN has also released a two-page memo supposedly written by Eastman and purportedly shopped by the Trumpistas to Pence. Titled "January 6 Scenario," the memo contains a number of fantastic assertions, including the contention that Pence should announce the existence of "ongoing disputes" in seven states, despite the fact that not a single state sent more than one official slate of electors--even though a minority of individual Trump-loyal state legislators in various states purported to certify Trump's electors. I would go into more detail about the memo's absurd contentions, but it's short enough that readers can examine it themselves.

I'll focus the balance of this brief essay on the one and only external source cited in the memo (purportedly) from Eastman: a September 30, 2020 essay on Verdict by Professor Neil Buchanan, Professor Laurence Tribe, and me. Although the essay lists us authors alphabetically, and thus has Professor Tribe last, the memo refers to it as the work of Tribe alone, no doubt because Professor Tribe is a bête noire for the right, the epitome of a liberal Democrat. Eastman (if he indeed authored the memo, which lists no author) probably thought that by citing Tribe he would hoist Joe Biden, Nancy Pelosi, and Chuck Schumer by their own petards because, you know, no Democrat could possibly take a different position from Tribe on anything. That's absurd, of course, but no more absurd than the use the memo purports to make of our essay.

Civility and Discourse in Legal Education and Social Media

 By Eric Segall

Last week I debated affirmative action with UCLA Law Professor Richard Sander in front of GSU students (virtually) and was asked by my faculty, along with Professor Anthony Kreis, to prepare a presentation on the pros and cons of twitter for furthering professional development. These events caused me to reflect on when and where civility is important and how social media fits into that question. 

In an excellent and thought-provoking post on this blog last Monday, Professor Sherry Colb explained what happens when people abuse the civility norm or invoke it hypocritically.  I'll have a little more to say about her chief example below, but for the most part I want to talk in this post about the value of the norm when it's not being abused. I have come to the conclusions that civility is almost always essential in public discourse, that finding common ground with folks you disagree with makes for better, more high minded discussions and debates, and that it is quite difficult to achieve civility and common ground on social media, which is a major problem inside and outside of legal education.

Friday, September 17, 2021

Speech and Role Morality

 by Michael C. Dorf

On Monday, Professor Colb reported on a recent discussion hosted by Cornell Law School featuring Professors Cornel West and Robbie George. In answering some comments by one reader, I offered some further support for the main essay's criticism of the analogy Professor George drew between private attorney general statutes in the environmental and other contexts, on one hand, and the deputizing of private parties by SB8, the Texas abortion statute. In a future essay, I might elaborate further on my somewhat cryptic comments and also dive deeper into the legitimate and illegitimate grounds that lawmakers have for enlisting private parties in enforcing public (and other) obligations. In today's essay, however, I want to turn to another issue that arose during the course of the discussion, which ended up as a missed opportunity.

My colleague Sheri Johnson as moderator asked the panelists--who celebrated one another as icons of intellectual freedom--whether they thought Harvard had acted improperly when it failed to renew Ronald Sullivan as Head of Winthrop House (one of the undergraduate residential colleges) in light of complaints by students, especially women, about Sullivan's work at the time as a criminal defense lawyer representing Harvey Weinstein. Professors West and George both condemned Harvard College for the action, while praising Harvard Law School, where Sullivan is a clinical law professor, for subjecting him to no penalty.

I agree that the law school had no ground for subjecting Professor Sullivan to any sort of penalty, but despite Professor George's introductory remarks about the importance of understanding the position of those with whom you disagree, I was struck his failure and the failure of Professor West to grasp, much less persuasively refute the objection.

Thursday, September 16, 2021

That Sense of Relief from California’s Recall Comes Five Years Too Late

[Note to readers: Today's Verdict column, "Why Do We Continue to Use Loaded Words Even When We Know that They Have No Meaning?" represents my latest attempt to channel George Orwell.  I always fall short, of course, but I hope that the column might nonetheless be of some interest.  In any event, the column below addresses a completely different topic.]
 
 
by Neil H. Buchanan
 
Earlier this month, I again found myself describing various extremes to which the wholly autocratic Republican Party might yet resort.  In that column, the I-can't-believe-it's-even-possible-to-be-saying-this possibility du jour was the creation of new U.S. states and the elimination of existing states, in "what would amount to a gerrymandering of the Senate."
 
Was that scenario "out there"?  Sure, but so was the January 6 insurrection -- not to mention Republicans' subsequent efforts to ignore, justify, and shift blame for that horrible day.  I ended that column with this:
Maybe it will not be worth it for Republicans to carry out all of the crazy ideas that I have laid out here.  But these extremists certainly do not lack energy.  They are, for example, trying to recall not just California's governor but dozens of other Democrats who won legitimate elections.  Why not pull out all the stops?
I have not checked whether any of the other sixty recalls were successful, but obviously the big news this week is that the main event -- the plan to take out Governor Gavin Newsom and replace him with a talk show host who is at least as bad as Donald Trump -- failed spectacularly.  As in an epic blowout, almost a 2-to-1 win, the kind of thing that we do not expect to see even in a deep blue state.  (Or in red states, either.  Texas, for all of its longstanding voter suppression, only went for Trump by five and a half points last year.)

Is it time to celebrate?  Yes, up to a point.  Here, I will offer a few observations on where we are now, in light of what happened in California.  Unsurprisingly, most of the news is still bad, especially compared to what could have happened in earlier elections.
 

Wednesday, September 15, 2021

Labels Matter: How Professor Jack Balkin Snookered Justice Kagan and Others to Fuel Faux Originalism

 By Eric Segall

In 2007, Professor Jack Balkin of Yale Law School shocked the academic world by arguing that Roe v. Wade could be justified under an "originalist" approach to constitutional interpretation, and that living constitutionalism and originalism were opposite sides of the same coin. Balkin would later expand that article into a book called, of course, "Living Originalism." 

I want to be crystal clear on two points before moving forward. Balkin's descriptive accounts of constitutional law (which rely considerably on social movements) are as sophisticated, interesting, and accurate as any I have ever read. However, his labeling of his theories as "originalism" has not been helpful and has clouded rather than clarified constitutional debates. 

Tuesday, September 14, 2021

Understanding Government Spending and All That

by Neil H. Buchanan

Last week, I wrote what one might charitably describe as an unrestrained response to Senator Joe Manchin's continued attempts to use cliches and (at best) half-truths to defeat his Democratic colleagues' current spending proposal.  They plan to supplement the physical infrastructure bill that Manchin supports with a "human infrastructure" bill, which is merely a way of saying that the government would invest in improving human beings' ability to function in the economy.  Manchin only wants the bricks-and-mortar bill.

The gist of my argument was that Manchin is engaged in shameless pandering and intellectual dishonesty, an argument that was easy to support by looking at Manchin's own words.  After writing that column, however, I had an "academic moment," in which I returned to a scholars' best instinct: Take a person's words as if they were offered in good faith and ask whether his arguments leave room for reasoned debate that could ultimately converge toward a meeting of the minds.
 
Again, my honest reading of the available evidence is that Manchin is engaged in excuse-making and misdirection, with no evidence that he is interested in being moved to a new position by facts or logic.  But if I am wrong about that, what would I say to try to get him to budge from his current stance?

Monday, September 13, 2021

Unmasking the Power Game Behind Pleas For Civility

by Sherry F. Colb

On September 9, Professors Cornel West and Robert George visited Cornell Law School to engage in civil conversation about topics on which they might disagree. My colleague and friend, Professor Sheri Johnson, expertly moderated the discussion. As a general matter, I like civility. When one can achieve positive ends without being disagreeable, civility is highly desirable. There is, however, a downside to civility that emerged for me as I observed the conversation.

During the discussion, Professor Johnson at one point asked the two men what they thought of the Texas abortion statute that has lately been in the news, SB8. The law prohibits all abortions (save those necessary to prevent a mother's death) starting at six weeks gestation, and it deputizes any private person in the world to bring a lawsuit against a person who induces or performs an abortion or who "aids and abets" the performance of an abortion. I wrote at greater length about this law here. What I will note now is that the statute plainly violates the Constitution under existing doctrine and that it intentionally delegates enforcement to private parties to make it difficult or impossible to declare it unconstitutional prior to its enforcement. The goal is, of course, to deter the universe of individuals who might help a woman exercise her constitutional right to end an unwanted pregnancy, by threatening them with lawsuits by random bounty hunters who have nothing to do with the woman or her wish to have an abortion. What could better capture the sentiment that a pregnant woman is everybody's business?

Friday, September 10, 2021

Anti-Theocracy and the Rule of Law

by Neil H. Buchanan 
 
Yesterday, The New York Times op-ed page ran the latest column from one of their very best (if not the best) opinion writers, the former Supreme Court reporter Linda Greenhouse.  The piece's title, "God Has No Place in Supreme Court Opinions," if anything undersells the import of Greenhouse's coolly impassioned and incisive reaction as the United States "lurches toward theocracy."
 
As it happens, just the day before, I had stepped a bit outside of my usual lanes and published a Verdict column discussing this very issue: "What Would the Church-State Divide Look Like If I Were God? (Irony Alert)."  I typically encourage readers of Dorf on Law to click on my Verdict columns.  Today, I encourage all of you first to read Greenhouse's column and only then to read mine, if you have time.  I believe that my column is worth reading (as one might expect), but I know when to acknowledge a master at work.

Here, I want to discuss some overlap as well as some differences between the two columns (written entirely independently, I should add; Greenhouse and I have never met, and the writing and editing schedules for the columns guarantee that neither of us were influenced by the other's words -- not that I imagine that I am on her RSS feed).  The bottom line in both columns is that the intensifying theocratic repression that dominates this country is truly frightening.
 
I am on record arguing (at length) that his country's days as a constitutional democracy are numbered.  Greenhouse's arguments should remind us that, even if I am later proved wrong and our system survives, this country desperately needs to re-establish a robust separation of church and state.  If voter suppression and gerrymandering do not doom us, uncontrolled theocrats will.

Thursday, September 09, 2021

A Modest Proposal: Extend Ex Parte Young to Cover the Likes of Texas Bounty Hunters

 by Michael C. Dorf

Although not widely known by non-lawyers, attorneys who practice in the federal courts are very familiar with the 1908 case of Ex Parte Young for two main reasons. First, it is the leading case articulating the legal fiction that a lawsuit against a government official seeking an injunction directed at that official to act or refrain from acting in some way is not a suit against the state barred by sovereign immunity. Second, Ex Parte Young is commonly cited as vindicating the existence of a cause of action or legal claim against such officials.

In this second function, Ex Parte Young is somewhat redundant with the injunctive relief available against government officials under the main civil rights statute, 42 U.S.C. Sec. 1983. However, there are some circumstances where Ex Parte Young is not redundant. For example, in a case like the 2002 SCOTUS decision in Verizon Md v. Public Serv. Comm'n, the plaintiff was permitted to bring an Ex Parte Young action to enjoin state officials from taking action that violated a federal statute (the federal Telecommunications Act) but not civil rights. A Section 1983 action wouldn't have been available, but Ex Parte Young was.

Because Ex Parte Young is most closely associated with the two important doctrines that bear its name, it is easy to forget the facts of the case. However, they bear examination, because they point the way towards a means for challenging Texas SB 8 and future laws that similarly seek to chill the exercise of constitutional rights while closing the federal courthouse doors to suits for anticipatory relief. Accordingly, let's review what actually occurred in Young.

Wednesday, September 08, 2021

Joe Manchin Versus Public Investment: Argument by Cliche

by Neil H. Buchanan

Last week, I heard that West Virginia's senior U.S. Senator, Joe Manchin (D, who apparently thinks that it is good form to headline at fundraisers for Republicans in other states) had written an op-ed announcing that he was going to oppose what is now widely known as the Democrats' $3.5 trillion infrastructure budget bill.  No surprise there.  I came across a bit of much-deserved snark at Manchin's call for his colleagues to "take a strategic pause," which was just a few nutrition-free morsels of word salad, but I did not think much more about it.

Yesterday, however, a colleague asked me what I thought about the op-ed, which had been published last week on The Wall Street Journal's infamous op-ed page.  (I am not providing a link to the piece, because it is behind a paywall.  Rupert Murdoch is rich enough.)  After cursing my colleague for putting me in the position where I would force myself to read what Manchin had written, I dove in.

What an unexpected treat!  While Manchin's defenses of the filibuster have been embarrassing efforts that would earn at best a B-minus in any undergraduate course, his pose as a sober centrist on fiscal matters is terrible in a slightly different way.  Yes, when he tries to make arguments, they are full of holes.  Worse, however, is that he relies almost entirely on stale cliches about deficits and supposedly responsible stewardship of the country's economic policy.  (Not that his defenses of the filibuster are cliche-free, now that I think about it.)  This is so bad that it is fun, at least until one remembers the stakes involved.
 

Tuesday, September 07, 2021

Texas Could Not Get Away With This Absent SCOTUS-Created Limits On Constitutional Adjudication

 by Michael C. Dorf

The Texas Republican lawmakers who enacted S.B. 8--which forbids abortions after roughly six weeks and relies exclusively on private enforcement--bear primary responsibility for both the violation of the constitutional rights of Texans and for the diabolical scheme to deprive them of their ability to challenge the violation before it is too late for thousands of them. That said, the U.S. Supreme Court also bears substantial responsibility.

Much of the SCOTUS responsibility arises out of its refusal to grant interim relief last week. Although I strongly disagree with that decision in light of the balance of the equities, as Chief Justice Roberts recognized in his dissent, the per curiam opinion is not wrong that existing precedent leaves open the question whether elimination of public enforcement enables state legislation to circumvent a pre-enforcement challenge--even when a law's chilling effect will very substantially delay or impede the ability of the law's targets to challenge it in some other way.

But to say that existing procedural law makes the circumvention efforts at the core of S.B. 8 potentially effective is to indict existing procedural law. And let's be clear that the procedural law at issue is the Court's own creation. S.B. 8 is a symptom. The disease is the Supreme Court's justiciability doctrines.

Friday, September 03, 2021

The Changed Abortion Landscape and the Role of States in the New Republican Autocratic Order

by Neil H. Buchanan

What will happen when Republicans complete their anti-constitutional, anti-democratic, and anti-republican takeover of the federal government?  I have been addressing various aspects of that question over the last year or so, including in yesterday's new Verdict column: "A Strange Type of Federalism Awaits Us in Republicans’ Upcoming One-Party Autocracy," which was a prediction and warning about how federal, state, and local government relationships will change after Republicans have ended meaningful elections at the federal level.

In that column, I devoted only a small part of the analysis to the federalism aspects of reproductive rights.  Writing less than forty-eight hours ago, I (along with almost everyone) had not yet learned what the Supreme Court was going to do (or not do) about the Texas abortion-vigilante law.  After the release of the Court's shocking non-decision, Professor Dorf guided us through how that non-enjoined law could and should have been handled.  Although the five most conservative justices hid behind the excuse that they had no way to stop Texas's law, they most certainly could have done so, had they been sufficiently motivated.
 
One side note to all of this is that we can now set aside the belief that Chief Justice Roberts would prevail on his fire-breathing ideological compatriots and get them to act stealthily in overruling Roe.  I suppose it is still possible that, when the Court takes up the Mississippi 15-week abortion case this Fall, Roberts could still convince the others to be cagey and not explicitly end Roe.  They could, for example, say that Roe is still good law, but the threshold is now fourteen weeks -- or, in light of Texas's six-week cutoff, the Court could say that five weeks is the new Roe limit.

But why bother, now that Roberts' unruly group just went rogue and effectively ended abortion rights in any state where the (often heavily gerrymandered) Republican state government adopts Texas's law?  Republicans in Florida and South Dakota are already speeding toward that end, and so will others.  If the theory of only stealthily getting rid of Roe was political optics -- not wanting to make the people who inexplicably took Senator Susan Collins seriously (when she said that Roe would not be at risk) look like idiots, and thus not pushing even more voters away from Republicans -- that ship has now sailed.

That will play out soon enough, but here, I want to return to the federalism question, expanding on some points that I made in yesterday's Verdict column.  Big question: How long will Republicans allow Democrats to do things at the state level, in states where Democrats are still getting elected?  Easy prediction: Not long at all.

Thursday, September 02, 2021

The Cloud Cast by SCOTUS Conservatives Over Roe Distinguishes the Texas Law From Most Procedurally Similar Ones

 by Michael C. Dorf

Dissenting from last night's 5-4 order rejecting the plaintiffs' request for an emergency injunction of the Texas "heartbeat law," Chief Justice Roberts spoke for himself and his three more liberal colleagues when he wrote that they

would grant preliminary relief to preserve the status quo ante—before the law went into effect—so that the courts may consider whether a state can avoid responsibility for its laws [by relying exclusively on private enforcement]. Defendants argue that existing doctrines preclude judicial intervention, and they may be correct. Both the consequences of approving the state action, both in this particular case and as a model for action in other areas, counsel at least preliminary judicial consideration before the program devised by the State takes effect.

(Emphasis added).

It is not difficult to imagine how the heartbeat law's enforcement provisions--relying exclusively on private enforcement by granting power to "any person" to bring lawsuits imposing crippling liability on abortion providers--could be used in the "other areas" to which the Chief Justice refers, and not just in red states. For example, contrary to McDonald v. Chicago, New York could ban possession of all handguns and grant any person the right to sue someone found to possess a handgun for $10,000 per day the handgun is possessed, while forbidding public enforcement. Massachusetts could ban hate speech defined in a way that violates RAV v. St. Paul and use the same enforcement mechanism. Etc.

But here's the thing. Such hypotheticals do not represent the end point of a slippery slope to which the upholding of the heartbeat law could lead. The heartbeat law is actually worse than most such efforts to circumvent anticipatory litigation in federal court. The cloud of uncertainty over abortion rights created by the very Justices in the majority in last night's ruling makes defying the heartbeat law a much riskier proposition than defying the laws in my hypothetical examples.

Wednesday, September 01, 2021

When to Hold Businesses Accountable for the Bad Acts of their Customers?

 by Michael C. Dorf

My latest Verdict column discusses a lawsuit by Mexico against various U.S. firearms manufacturers and sellers. As I explain there, Mexico raises tort claims under Connecticut and Massachusetts law, but its main obstacle will be a federal statute, the Protection of Lawful Commerce in Arms Act (PLCAA), which shields U.S. firearms manufacturers from most lawsuits claiming that they are responsible for harms caused by criminals using their weapons. I discuss Mexico's two main arguments (at which the complaint merely gestures, because it falls to the defendants to raise PLCAA as a defense): (1) that the defendants' conduct puts the lawsuit within an exception to PLCAA; and that even if not (2) PLCAA doesn't apply to litigation seeking redress for harms occurring outside the U.S.

My column expresses sympathy for Mexico but doubts about the likelihood that it will prevail. After all, as I observe at the end, PLCAA is "a deplorable gift from Congress to the U.S. firearms industry and gun lobby," so it shouldn't be all that surprising that it produces a deplorable result.

Although any reasonably informed observer understands the politics that gave rise to PLCAA, here I want to explore the policy intuition it purports to implement. The basic idea is that criminals who use firearms for illicit purposes should be held accountable for their crimes but firearms manufacturers producing products that are lawful for law-abiding citizens should not be so liable. The intuition has little proper application to a case like this, but might it be valid in other contexts?