Justice Thomas' Contradictions: Of Decency, Empathy, and the Judicial Role

 By Eric Segall

Last week on my podcast Supreme Myths, Dahlia Lithwick talked at length about the need for judges to display empathy and decency in their judicial opinions and to show that they at least appreciate the problems of people unlike themselves. As an example, she pointed to Justice Kagan's tendency to write opinions in the second person: "Imagine yourself...." That kind of empathy tells the parties that the judge understands their points of views and may make it just a little easier for one of the parties to deal with losing the case. Such sensitivity also provides a role modeling exercise for people reading the decisions. 

Empathy when judging does not mean deciding a case in a way inconsistent with the law but rather a way for judges to show that the litigants have at least been heard. There is also a wide-ranging literature on the role of emotion and empathy in legal reasoning but this blog post is not about that.

There can be no doubt that Justice Clarence Thomas, since his confirmation at least, has displayed decency and empathy towards others in his personal dealings. He famously devotes considerable time to students and faculty when he visits law schools, and more than most of the other Justices, he hires law clerks outside the several elite schools that provide most Supreme Court clerks. Recently, a visually disabled clerk for Thomas wrote with great passion about how kind he was when her grandmother died and how he told her family comes first, work second. Virtually everyone I have ever asked gushes about their interactions with Justice Thomas and how personable and present he is when visiting with other people. As one writer observed:

The first thing to know about Clarence Thomas is that everybody at the Supreme Court loves him...Thomas cultivates a jovial presence in the building’s austere marble hallways. Unlike most of his colleagues, he learns everyone’s name, from the janitors to each justice’s law clerks. He makes fast friends at work, at ball games, and at car races, and invites people to his chambers, where the conversations last for hours. Thomas’s booming laugh fills the corridors. He passes silly notes on the bench. As the legal analyst Jeffrey Toobin wrote in 2007, with his 'effusive good nature,' Thomas is 'universally adored.'

Yet, the same person who wrote the above also said that Thomas's "buoyancy marks a man whose career as a judge is a study in brutalism." There can also be no doubt that Justice Thomas does not display empathy and decency when deciding cases and writing judicial opinions. In fact, it is likely he feels that empathy and decency have no place in his courtroom.

Some of the Weakest Parts of the Conservative Anti-Tax Canon Were Usefully Gathered Into One Silly Op-Ed

by Neil H. Buchanan

 

Although it is already on political life support (due to -- no surprise -- reported opposition from Joe Manchin), an important and quite appealing tax-the-ultrarich proposal was announced this week.  Dubbed (both accurately and for maximum political impact) the Billionaires Tax, it is a limited repeal of a longstanding tax giveaway to the tiny number of lucky people who can avoid receiving their incomes in the form of salaries or wages -- that is, extremely wealthy people.

Soon after Oregon Senator Ron Wyden announced the plan, I received an email from a reporter for a financial network, asking if I could discuss the constitutionality of the Billionaires Tax.  I thought: "Wait, what?  This is a tax on income.  What could possibly be the constitutional question?"  But sure enough, the Republicans' responses to the plan have included, well, not exactly arguments but more like hopeful rumblings that somehow, maybe this is unconstitutional.  Good luck with that.

 

As I noted in my new Verdict column today, however, a helpful New York Times summary of the plan and the quick-take political response to it ended with this: "But the 700 or so billionaires that would be hit with the tax would most likely disagree that unsold assets could be considered income, and they will have the wherewithal to take the matter to the Supreme Court, if necessary."  So again, there is not a response so much as the belief that people with enough money can always buy a response and then ram it down the political and legal systems' throats.  That might end up working, for reasons that I explain in my column, but if it does, it will not be for reasons even within earshot of principled arguments.

I am likely to write a followup piece on Verdict discussing some additional constitutional side issues that might start to dribble out of the mouths of the same people who, say, argued that Congress in 2017 repealed sub silentio the Affordable Care Act (an argument that a majority of even the current Supreme Court seems likely to have rejected had they not dismissed the case on standing grounds).  The right's litigation machine is nothing if not relentless, and they might yet come up with another Hail Mary along the lines of the action/inaction distinction in the first ACA case, to give the Court's arch-conservative bloc an excuse to kill a tax on their benefactors.  Writing about terrible constitutional arguments is usually tedious -- and writing about them twice in succession is excruciating -- but this might end up being mildly important.

Here, however, I want to have some fun with a Washington Post columnist's attacks on the Billionaires Tax.  Typically, when I critique arguments proffered by op-ed hacks at the major newspapers, I collect a few useful nuggets from a number of the usual suspects and try to put them in context as I build toward a larger point.  Sometimes, however, one op-ed is just so wonderfully inane that it can be educational to focus on it in its entirety.  This is one of those days.

Will the SB8 Case Allow SCOTUS to Appear Moderate? If So, What Follows?

 by Michael C. Dorf  (**Updated with link to our amicus brief)

Later today merits briefs will be filed in the expedited SCOTUS cases on SB8. So will amicus briefs, including one from me and other federal courts scholars (Erwin Chemerinsky, Barry Friedman, Leah Litman, and Fred Smith). Meanwhile, I have a new Verdict column, in which I argue that the SB8 litigation is, in important ways, about the Court's own authority. At the end of the column, I mention prior episodes in which political actors--from Andrew Jackson to Little Rock segregationists to Richard Nixon--threatened to defy the Court. Allowing Texas to circumvent abortion precedents while they remain on the books would embolden further acts of defiance, I suggest.

Here I want to speculate a bit about the public reaction we might anticipate to a possible outcome of the litigation. My speculation is inspired by a conversation I had yesterday with NY Times reporter Adam Liptak. He posed (more or less) the following possibility: Suppose that the Court in the SB8 case allows the DOJ lawsuit to proceed and that the district court (or even SCOTUS itself) reinstates the preliminary injunction. Then suppose that in Dobbs (the Mississippi case), the Court upholds the ban on abortions after fifteen weeks. In such circumstances, mightn't the public perceive the Court as having reached a middle-ground compromise in which the point at which states can ban abortion is somewhere between six weeks (Texas) and fifteen weeks (Mississippi)?

I confess that the resulting Court-acting-moderately narrative is possible and also that it would be profoundly misleading. Is that a reason to hope that Texas prevails in the Supreme Court? Let's consider.

What Is So Bad About Trolling (Other Than Everything)?

by Neil H. Buchanan

Here at Dorf on Law, we have witnessed a bit of an uptick in trolling of late, which happens every now and then.  Our comments board is never particularly active (between one and ten comments per post being the norm), and the quality of the comments is often excellent and thought-provoking.  Moreover, once a troll reveals himself (and I readily admit that I am assuming that the trolls are male, based on the overwhelming weight of the evidence in the world), it is easy enough simply to put an offender on one's mental do-not-bother-reading list.  In any event, they usually leave (most likely due to boredom, given the relative sedateness of our community) after a few days or weeks.

Of course, even the most annoying of those occasional incursions into our genteel little corner of the all-powerful series of tubes are nothing compared to the mosh pits of Twitter and everything else online.  Elsewhere, women  and other disfavored victims are doxxed, websites are overwhelmed, cyber-bullying causes people to shut down their own email accounts and websites, and in some cases people kill themselves in response to having their lives invaded by anonymous monsters.

 

I thus do not in any way mean to compare the mild annoyances here or elsewhere in my life with any of that insanity.  Even the most aggressive off-list hate emails that I have received provide little more than a moment for me to stop and say, "Wow, someone actually thought it was acceptable to send that to a stranger."

Still, there is something interesting about the concept of trolling, even when it is limited to nasty or annoying words that could not in any way be deemed to merit exceptions to free speech rights.  There are good reasons to allow most types of trolling to continue unabated, but that does not mean that we have to ignore the practice.  Yes, I almost always succeed in living by the adage, "Don't feed the trolls," but that is merely an admonition not to give any particular troll the attention and engagement that he seeks.  By contrast, pointing to the existence of trolling and its uniquely logic-free style of argumentation can be clarifying.

Why SCOTUS Didn't Treat SB8 Like a Capital Case

by Michael C. Dorf

On Friday, the Supreme Court ordered expedited merits briefing in United States v. Texas, the federal government's challenge to SB 8. Oral argument is set for November 1. The order directs the parties to address their arguments to the procedural issues in the case: "May the United States bring suit in federal court and obtain injunctive or declaratory relief against the State, state court judges, state court clerks, other state officials, or all private parties to prohibit S.B. 8 from being enforced?" 

For those (including me) who urged the Justices to vacate the Fifth Circuit's stay and thus reinstate the district court's preliminary injunction against Texas and its agents, there are two pieces of good news here. First, the fact that the Court decided to grant certiorari--which requires four votes--suggests that the four Justices who dissented from the Court's failure to enjoin SB 8 when it came before them via private litigation last month believe that there is a sufficient hope of persuading at least one of their colleagues that none of them voted for a "defensive deny," i.e., to deny review to prevent the Court's majority from creating bad law. Second, by limiting the certiorari grant to the procedural issues, the Court tacitly declined Texas's invitation to use the case as a vehicle for overruling the right to abortion entirely. If that is to happen this Term, it will likely not be until the Court decides the Mississippi case.

So much for the good news. The bad news, as Justice Sotomayor explained in her dissent on Friday, is that by failing to grant the stay pending resolution of the procedural issues, the Court has allowed Texas to effectively deny the abortion right to 95% of Texas women who would otherwise be able to exercise it. The key question is why the Court has allowed Texas to do so. By comparing and contrasting United States v. Texas with the Court's practices in capital cases, I'll consider two hypotheses.

When Is a Crisis with Intergenerational Effects Not an Intergenerational Crisis?

by Neil H. Buchanan

 

In March 2020, Texas's troll-cum-Lieutenant Governor Dan Patrick made news by saying that old people should be willing to die so that their kids and grandkids would not suffer a loss of income.  Am I trying to score cheap points by exaggerating or distorting what he said?  I might be putting it less politely, but that was most definitely his point.  Appearing on one of the evening Fox News dumpster fires, Patrick said:

No one reached out to me and said, "As a senior citizen, are you willing to take a chance on your survival in exchange for keeping the America that all America loves for your children and grandchildren?" [But if] that is the exchange, I’m all in. ... I just think there are lots of grandparents out there in this country, like me, I have six grandchildren, that what we all care about and what we love more than anything are those children. ...  So my message is let’s get back to work, let’s get back to living. Let’s be smart about it and those of us who are 70-plus, we’ll take care of ourselves. But don’t sacrifice the country, don’t do that, don’t ruin this great America."

In my Dorf on Law column last Friday, I mocked Patrick's statement, which actually ran much longer than the quotation above but never said anything more than "economy good, death happens, oh well."  This was relevant because I was discussing the question of whether COVID presents a crisis that is intergenerational in the same sense that the climate disaster and the death of democracy are intergenerational.

I concluded that COVID is not an intergenerational crisis, even though it is very much a crisis on its own terms.  Today, I am going to give the Patrick point of view, or a non-cartoonish version of it, a fuller hearing, because although the point as he made it is horrifying, there is at least a plausible question about whether the differences in the coronavirus's threat to different age groups should cause us to think about this crisis in a different way.

My bottom line: Patrick is (still) a sociopath, and even though there are generational differences in COVID's affects on people's lives, this is still not an intergenerational crisis.  Side point: Even if COVID were an intergenerational crisis, that would not change how we should think about intergenerational crises.

 

Intrigued?  Or perhaps confused?  I sympathize.

 

Judge Bill Pryor and the Law Clerk: Cancel Culture, Judicial Ethics, and Racism

 By Eric Segall

There is little dispute that cancel culture in legal academia and elsewhere is at the least controversial and at the most quite dangerous to freedom of speech values and academic freedom. In just the last few weeks, a University of Michigan professor got in trouble for showing the 1965 film Othello starring Sir Laurence Olivier (considered by many the greatest actor ever) in blackface. The Chaired Professor issued two apologies and had to cancel classes after students complained. And, there was yet another major dust up at Yale Law School involving a student who invited others to a "trap house" party where "Popeye's chicken, basic-bitch-American-themed snacks (like apple pie, etc.)" and hard and soft drinks would be available. 

The term "trap house," according to Eugene Volokh, "originally referred to crack houses in poor neighborhoods, has, according to Urban Dictionary, 'since been abused by high-school students who like to pretend they're cool by drinking their mom's beer together and saying they're part of a 'traphouse.'" Although the reports are somewhat conflicting, it appears Yale administrators strongly encouraged the student to apologize and suggested not doing so might hurt his career.  

Virtually every other day on the Volokh Conspiracy website one can find stories of people being criticized, harassed, or even fired or punished for some form of speech some people find offensive. It is my view that the general remedy for such behavior is more speech, not official sanctions, depending, of course, on the specific behavior at issue.

But while all of this is going on, there has been awful conduct by the Chief Judge of the Eleventh Circuit Court of Appeals Bill Pryor who, because of life tenure, is not subject to official punitive sanctions, but reveals in an awful way how racist our society continues to be. Although the Washington Post, Above the Law, and a few other outlets have covered the story, the attention has not been serious enough, and I fear the passage of time will remove this debacle from the news cycle. That would be a terrible mistake.

The Political Psychology of Fiscal Numerology - Debt Ceiling Edition

 by Michael C. Dorf

Last week I joined Congressman John Yarmuth as a panelist in a program moderated by former Congressman Steve Israel as well as my Government Department colleague Professor Doug Kriner and Erin King Sweeney, who serves as senior associate director of Cornell's Institute of Politics and Global Affairs, which sponsored the event. The panel discussion had been set up a week earlier, when it appeared that it might be occurring just as the global economy was melting down under imminent threat of a U.S. default on its debt obligations.

The short-term increase in the debt ceiling somewhat alleviated the sense of immediately pending doom, but the timing was nonetheless noteworthy because earlier that day Congressman Yarmuth--who chairs the powerful House Budget Committee--announced that he would not seek re-election in 2022. Although Yarmuth is the sole Democrat in Kentucky's delegation, his seat is unlikely to turn red even after redistricting, because his district already reflects the Republican state legislature's efforts to "pack" Democrats from Louisville and environs into a single district, thus rendering the rest of the state's delegation safely Republican.

Nonetheless, Congressman Yarmuth's retirement will be a major loss for the Democratic Party and the country, as he is a dedicated and highly effective public servant. During our discussion, he made some statements endorsing so-called modern monetary theory with which I disagree, but we were in complete agreement on everything directly related to our subject: the debt ceiling. Interested readers can watch the video of the hour-long program here.

In the balance of today's essay, I want to explore a couple of puzzling claims that Congressman Yarmuth made about political psychology--claims I have no reason to doubt, as I trust his own political sense more than my own. My goal, then, is not to question the claims but to explore them.

Abortion and the Free Exercise of Christianity

 by Sherry F. Colb

At times, it must seem to many Court-watchers that abortion is its own body of law, separate from the other areas in which the nine Justices issue opinions. And this term, the Court will be hearing an abortion case, Dobbs v. Jackson Women's Health Organization, a case presenting the question whether banning abortion starting at fifteen weeks violates the Constitution. But for this Court, its view of abortion is very much linked to its view of a whole other body of law, the Free Exercise of Religion in the First Amendment to the Constitution. I have an article coming out in the North Carolina Civil Rights Law Review in the Spring that explores the Court's thinking in the realm of religious liberty. But here, I will offer a brief description of my theory and then apply it to abortion and show that it fully explains where the Court is heading on the right to choose.

If Changing Judges Changes Law, Is the Supreme Court a Court of Law?

 By Eric Segall

Retired Judge Richard Posner once said that, “if changing judges changes law, then it is not clear what law is.” There can be no dispute that the Supreme Court of the United States changes law all the time and on extremely important questions that affect all fifty states and over 300,000,000 people. These changes most often occur without any amendments or newly discovered historical materials. I demonstrate this claim below and then offer a few observations about what it all means.

Justice Between Generations in an Unjust World

by Neil H. Buchanan

 

I am back to thinking about intergenerational justice.  This is a topic about which I have written extensively over the last decade-plus, and because I am once again delivering some public and academic lectures around the UK and EU this Fall, I have had reason to return to writing about it -- with the further goal of at long last finishing my book project: What Do We Owe Future Generations?

 

Yesterday, I published a new Verdict column: "Three Threats to Future Generations: Should COVID-19 Change Our Thinking About Climate Disaster or the End of Democracy?"  As I will shortly explain, I attempt in that column to sort out whether the COVID-19 crisis should change the way we think about the two biggest pre-existing threats to future generations: environmental catastrophe and the death of constitutional democracy.  Short answer: No, it does not.

Why think about any of this?  After all, it is now completely clear that our environmental and constitutional crises are nonstop disasters, with no end or even mild mitigation in sight.  Even so, for some purposes, it does not matter whether there is any hope for a better outcome on either score.  That is, even if we end up living in a malign dictatorship that does all it can to deny and speed up environmental disaster, there will nonetheless continue to be issues that might or might not have intergenerational justice implications.

If nothing else, then, I might have something useful to do with my time in a few years, after King Donald II has assumed the throne.  Even if there is no way for anyone -- certainly not scholars -- to change policies in such a dystopia, it will be interesting as a descriptive matter to be able to say: "Initiative X, proposed by Jared the Jester, will not have uniquely bad effects on future generations, even though the current effects are disastrous."  Or the opposite, or something else entirely.  The point is that even policies adopted in an anti-democratic, dystopian hellscape might or might not have intergenerational effects.

How should we think about this?  The threshold issue is to determine how we can distinguish between policy analyses that do and do not meaningfully change when we think about future generations.  I raised that issue in my Verdict piece, and I reached what might seem to be a counterintuitive conclusion.  (At least, one of my research assistants told me that she was taken by surprise.)  I argued that the COVID-19 pandemic is not a crisis that should change the way we think about the two big intergenerational crises.

 

Perhaps somewhat misleadingly, I concluded: “We do not need to view the current pandemic as a third crisis, calling for tradeoffs in dealing with the two crises that already existed.”  Am I thus saying that the worst pandemic in more than a century is somehow small, perhaps not even truly any kind of crisis at all?  No, but I can see why it might have come across that way.  [Update on 10/27/2021: For clarity, the Verdict piece has now been edited to include the modifier "intergenerational" between "third" and "crisis" in that sentence.]

How Sincere are Religious Objections to COVID-19 Vaccination?

 by Michael C. Dorf

Under federal and state constitutional and other law, when a person claims some entitlement in virtue of a religious belief, neither courts nor other governmental actors challenge the truth of the belief, but in principle, they may question the sincerity of those beliefs. I say "in principle" because recent cases involving claimed religious objections to public health and other measures appear to take such objections at face value without properly scrutinizing them for sincerity.

Here I'll focus on Tuesday's opinion by Federal District Judge David Hurd in Dr. A v. Hochul, granting the plaintiffs' motion for a preliminary injunction against New York's application of its COVID-19 vaccination mandate for health care workers to ostensibly religiously scrupled plaintiffs. In the course of the ensuing discussion, I'll have occasion to observe that the truth and sincerity inquiries may not be entirely possible to disentangle.

Minimum Wages, Academic Fads, and the Faux Nobel

by Neil H. Buchanan

The time has come once again to talk about the non-Nobel Prize in Economics.  There are many years in which I choose not to take public notice of the announcement of that prize, either because I have no opinion about the recipients' work or, more likely, because there are too many other things going on in the world to devote one of my columns to discussing what is in the end an obscure academic award.

 

Obscure?  Nobel?  One of the late night shows recently asked passersby in Los Angeles to name even one Nobel winner of any kind, including the Peace Prize.  It was embarrassing to watch those poor people struggle.  How would they have done if asked to name any of the economists?

This year, however, there actually is something both interesting and heartening about the economics award.  Sometimes, economists' work is important enough to be transformative and to deserve recognition, even in a field as encrusted and often retrograde as academic economics generally is.  This year's award even has current policy implications.

 

Incompatible Commands in Law and in Everyday Life

 by Michael C. Dorf

A recent NY Times column by Peter Coy quotes Professor Buchanan and me in a dispute over the nature of money with Professor Rohan Grey (subsequently joined by Paul Krugman). Buchanan and I worry that if the government were to mint trillion-dollar platinum coins as a gimmick to circumvent the debt ceiling, that could undermine popular faith in money, which depends for its value on social acceptance. Grey and Krugman respond that money has value because the government requires the payment of taxes and accepts money, specifically dollars, as payment. Buchanan and I in turn respond that this fact does not suffice to make money perform its function in private transactions, as evidence from countries experiencing high inflation shows. Moreover, we have pointed out in numerous fora, minting trillion-dollar platinum coins should be at best a last resort, given that there are better ways for the President to handle a debt-ceiling crisis.

My Verdict column tomorrow will address a point of partial agreement between Professor Grey and me. As I told Mr. Coy--and as I'll expand upon in the column--we should be hesitant to endorse any view that says the People can't handle the truth. The column will explore the circumstances in which it nonetheless might make sense to promote "noble lies."

In this essay I shall put aside what are, at the end of the day, relatively minor differences between Buchanan/Dorf and Grey/Krugman over exactly how the President could best respond to congressional failure to raise the debt ceiling. After all, we agree on the more fundamental points: (1) Congress should repeal the debt ceiling; (2) if it doesn't, it should at least raise or suspend it; (3) if Republicans refuse to cooperate in the next round of debt-ceiling brinksmanship, Democrats should go it alone; and (4) if Democrats fail to do that because of either brinksmanship of their own or because of the timidity of Senators Manchin and/or Sinema, then President Biden should use whatever tools will best allow him to mitigate the damage by borrowing what is needed to make up the shortfall between authorized spending and available revenues.

Given that agreement, I want to ask whether a failure to raise, suspend, or repeal the debt ceiling really would present the President with what Professor Buchanan and I have sometimes called a "trilemma" of only unconstitutional options in which he must choose the least unconstitutional (and thus least bad) option. That inquiry will, in turn, provide an opportunity to think about incompatible commands in other contexts.

Social Media Regulation, The Limits of Originalism, and the Supreme Court's Obsession with Free Speech

 By Eric Segall

Last Friday I participated in a virtual symposium at Mercer Law School on "Social Media Platforms and Free Expression." The issues raised by government regulation of the internet are complex, and of course no one can do justice to them in a lengthy law review article, much less a blog post. But there are two points I want to highlight about this issue that came through clearly during the symposium: 1) originalism is completely unhelpful as a theory of interpretation/construction when it comes to judicial evaluation of regulatory limits on social media companies; and 2) the United States Supreme Court has an obsession with free speech values (at the expense of other important concerns) not shared by most other free countries.

The S.B. 8 Injunction and the Questionable Principle that Equity Acts Only When there is no Adequate Remedy at Law

 by Michael C. Dorf

I spent an hour yesterday on the phone with a very smart but very perplexed reporter trying to understand the various nuances of the many issues addressed by Judge Pitman in his opinion granting a preliminary injunction against Texas SB 8 in the case brought by the Department of Justice. That's completely forgivable. These issues are hard enough to explain over the course of a semester in my Federal Courts class. And at least some aspects of the SB 8 litigation involve novel applications of complex doctrines.

Here I want to focus on a fairly basic idea that permeates Judge Pitman's analysis. He repeatedly states that private litigation is inadequate to vindicate the constitutional right to abortion in Texas, given the procedural trapdoors in SB 8. Why does he keep coming back to that point? I think there are at least two reasons.

First, Judge Pitman wants to ward off a criticism--offered anticipatorily by Texas in its submissions--that his ruling licenses the federal government to sue any state any time it allegedly violates anybody's constitutional rights. By pointing to the inadequacy and de facto unavailability of other remedies, Judge Pitman preemptively rebuts the criticism that his decision will open the floodgates to litigation by the federal government against states.

Second, Judge Pitman needs to show that the United States is entitled to an equitable remedy. By long tradition, however, equitable relief--i.e., an injunction ordering a defendant to do something or refrain from doing something--is only available when there is no adequate "remedy at law"--typically defined to mean a damages lawsuit but for our purposes also an after-the-fact remedy such as the ability to raise the constitutional right to an abortion as a defense to a civil action. As Judge Pitman shows in detail, by design, SB 8 erects numerous obstacles to remedies in the ordinary course of a civil action. Thus he shows that there isn't an adequate after-the-fact remedy, and therefore prospective equitable relief is justified.

I believe that Judge Pitman's ruling is correct--which is not to say that I'm entirely confident that it will be affirmed by the Fifth Circuit and/or SCOTUS, whose jurists might take a different view from mine about the procedural issues, the underlying right to abortion, or both. In any event, I want to put all of that aside for now to focus on what everyone has long taken for granted: the traditional rule that a court should not issue an injunction where there is an adequate remedy at law. I'll argue that the rule is unjustified.

The Platinum Coin Spit-Take and Other Debt Ceiling Lunacy

by Neil H. Buchanan

The latest reporting from the U.S. indicates that Republicans have offered to pause their debt ceiling obstructionism, which had threatened to create economic and constitutional crises on October 18, until sometime in December.  Among other things, this means that my phone might stop ringing for the next two months.  Woo hoo!

 

What is left to say?  Plenty.  Here, I want to discuss a few of the truly silliest arguments that have arisen in this latest go-round on the debt ceiling.  As the headline to this column suggests, there was one moment in particular when I actually did a spit-take, and there were certainly others that qualified as utterly puzzling if not downright goofy.  Who said legal analysis is never fun?

We (Buchanan and Dorf) Aren't the Ones Saying the President Should "Invoke" the Fourteenth Amendment

 by Michael C. Dorf

A recent Washington Post article explains that the Biden administration is quietly trying to figure out what to do in the event that Republicans don't end their filibuster and Democrats don't manage to increase, suspend, or repeal the debt ceiling through reconciliation before the government is unable to meet all of its legal commitments without exceeding its borrowing authority. With less than two weeks remaining until that doomsday deadline, the scenario planning is sensible, much in the way that it's sensible to have some sort of evacuation plan in the event of a nuclear war. Of course the evacuation plan will not avert the catastrophe but can only somewhat mitigate it. And of course the top (and second, third, and fourth through fiftieth) priority should be averting the catastrophe. Still, it would be imprudent not to prepare for the worst in case it occurs.

At the same time, as Prof Buchanan acknowledges in his latest Verdict column, the Biden administration has good reason not to explain publicly that, should Congress fail to act, the President will issue bonds in excess of the debt ceiling--even though, as Prof Buchanan and I have argued in multiple articles and columns over the last decade, that is in fact what he should do under such circumstances. A prior announcement of the intention to issue debt in excess of the ceiling could somewhat lessen the pressure on Congress, which in turn could increase the likelihood of congressional failure to act, which could itself carry very dire consequences.

Indeed, the fact that we can identify the least awful course of action for the President to choose should Congress not act does not mean that the situation would not be awful.  I do not think--as I have heard some critics of the Buchanan/Dorf view say I think--that issuing debt in excess of the ceiling would be "no big deal." On the contrary, as I (somewhat inarticulately) put the point to the WaPo reporter:

The view is often misattributed to me that it would be no big deal for the president to issue debt [after a debt ceiling breach]. It would be a big deal. It would be quite terrible and very likely would spook the markets. But the question is what to do if the spending and borrowing laws are inconsistent. I’ve expressed the view that the least bad thing to do under those circumstances would be to issue debt.

Having attempted to clear up any confusion about that matter, I now want to turn to another common misunderstanding of the Buchanan/Dorf view that, if push comes to shove, issuing debt in excess of the ceiling would be "the least unconstitutional option." Critics and even many commentators who are not critical of our view sometimes describe it as urging the President to invoke the Fourteenth Amendment. That formulation betrays a fundamental misunderstanding of our position that no one who actually read our work could hold. Rather, as I shall explain, it is the people on the other side of this argument who want to invoke the Fourteenth Amendment.

What If Pence Had Gone All In On the Coup?

by Neil H. Buchanan

 

People are still grappling with the Woodward/Costa revelations regarding former Vice President Mike Pence's possible flirtation with the completely nutty constitutional argument from Trump lawyer (and disgraced former law professor and dean) John Eastman.  Eastman, readers will recall, claimed that Pence could simply take control of the January 6 joint session of Congress and prevent Joe Biden's victory from being formalized.  Pence said no, but how close did he come to saying yes?

 

I am surprised to find myself saying that there is more to this story, but here we are.  Pence's actions are in some sense truly bizarre, and not merely because he ultimately found his moral bearings by talking with Dan Quayle.  In a lawless administration that had by that point reached its most extreme stage of degradation, why did Pence not simply do what Trump wanted and then dare the world to try to stop him?

 

The Misused Concept of "Discrimination" and why SCOTUS Should not Hear the Harvard Affirmative Action Case

 By Eric Segall

The Supreme Court term starts today and, as the whole legal world knows, the Court has already agreed to decide important abortion and gun cases. There is another dispute the Justices might hear that could have enormous consequences for private and public higher education in this country. The right-wing public interest group Students for Fair Admissions (SFFA), which has brought numerus cases challenging racial preferences in colleges and universities, has sued Harvard claiming the university discriminates on the basis of race against Asians. Two lower courts have issued hundred of pages of opinions rejecting these claims, and now SFFA is seeking Supreme Court review. The Court should deny certiorari for a number of reasons but mostly because Harvard is not engaging in "discrimination" under any meaningful sense of that term.

Harvard is a private university and thus not bound by constitutional requirements. However, a federal statute, Title VI of the Civil Rights of 1964, prohibits any organization that receives federal funds from engaging in "discrimination on the basis of race, color, and national origin in programs and activities receiving federal financial assistance." The Supreme Court has said that the legal standards under Title VI and those required by the Fourteenth Amendment's Equal Protection Clause are the same. Thus, a decision that Harvard is or is not violating Title VI could have enormous implications for public colleges and universities across the country.

Maybe the Vice President Decides the Presidential Election After All?

 by Michael C. Dorf

In our response to the appalling memo by John Eastman, Professor Buchanan, Professor Tribe, and I cheekily noted the temptation to run with Eastman's analysis in the next election, because doing so would license Vice President Harris to ensure a Democratic victory in the event that a Republican wins the 2024 Presidential election. Nonetheless, we explained that this conclusion is hardly the best reading of the Constitution's text and would run counter to the basic principle that no one should be a judge in their own cause: because the sitting Vice President is usually a candidate either for re-election or for the Presidency, it makes little sense to assign to the VP the unilateral power to rule on anything of great importance regarding the outcome of a Presidential election.

With a caveat I'll add at the very end of today's essay, I (speaking for myself without having consulted Professor Tribe or Professor Buchanan) will stick with that conclusion here. However, before doing so, I want to consider an argument to the contrary offered by serious scholars, not by the likes of former Professor Eastman.

In a draft article first uploaded to SSRN in March and very recently updated, Boston University Law Professors Jack Beermann and Gary Lawson argue that the VP in fact plays a very substantial role in resolving a certain kind of dispute over the Electoral College. Although I disagree with their bottom line and think that they make some errors, their article is generally thoughtful and, duly corrected, points the way towards a path through the chaos that could ensue with Trump loyalists in state legislatures.