Tuesday, November 30, 2021

Teach Your Parents Well

by Neil H. Buchanan
Generally, I like to think that I "get" American politics.  That does not mean that I understand what is going on in, for example, Ted Cruz's head when he says that "voter fraud is real.  It is a problem ... Voter fraud has been persistent from the very first election that has ever occurred."  There is no there there, but I get what he is up to.
That is not to say that this is not puzzling, even on its own terms.  Particularly coming from someone who has claimed merely to be representing people whose unspecified "concerns" about the 2020 election supposedly need to be closely examined, I understand neither why Cruz is now saying unequivocally that people's worries about voter fraud are based in fact, nor why he is backing up that claim with something as pathetic as: "There's always been fraud, I mean, amirite folks?!"
But as Professor Dorf pointed out in his column yesterday, while it is truly baffling to think about what Cruz might have been thinking when he put his name on an embarrassing Supreme Court submission, it is quite easy to know what Cruz is doing in the larger sense: he is, as always, seeking "advancement in the right-wing-o-verse."  Moreover, although it is impossible for me to understand why what Cruz and his ilk are doing brings thrills to the people to whom these things are pitched, I can follow the nakedly corrupt logic: the rubes like Trump and owning the libs, so ambitious and shameless people praise Trump and try to own the libs.

Peeling back that additional layer, I can even still "get" the line of thinking from Trump supporters themselves.  Much (too much) has been written about whether it is racism, economics, despair, or something else that is the central motivation of the new Republican/Trump party, but one can still look at any given situation and say: "Ah, I see, this is about a dangerously misconceived notion of personal freedom, so they are cheering when Generic Republican A tells everyone not to wear masks, and also when Generic Republican B tells everyone that the omicron variant is a Democratic Party plot to control people's lives and win the midterms."  Again, there is no sense to this, and each new low is surprising in its way.  But once the shock subsides, it all fits.

Except for one thing.  The latest right-wing crazed attack on education mostly makes internal sense, but the idea that parents should be shocked that educators want to teach their children ... you know ... facts and ideas still makes no sense to me.  And why should it?

Monday, November 29, 2021

With Amici Like These: Two Awful Briefs From Mississippi's Insurrectionist Friends

 by Michael C. Dorf

On Wednesday, the Supreme Court will hear oral argument in Dobbs v. Jackson Women's Health Organization, a challenge to Mississippi's Gestational Age Act, which, with limited exceptions, forbids abortions after 15 weeks into pregnancy. The law clearly violates the Constitution under existing doctrine. To be sure, Mississippi's original certiorari petition contended that the questions it presented "do not require the Court to overturn" Roe v. Wade or Planned Parenthood v. Casey, but the state's merits brief and numerous supporting amicus briefs ask the Court to do just that. And for good reason. Mississippi cannot plausibly win the case otherwise. As Judge Patrick Higginbotham wrote for the Fifth Circuit panel that struck down the law, "[i]n an unbroken line dating to Roe v. Wade, the Supreme Court’s abortion cases have established (and affirmed, and re-affirmed) a woman’s right to choose an abortion before viability," which occurs well after 15 weeks.

That is not to say it's impossible to imagine a completely dishonest opinion from the Supreme Court ruling for Mississippi but purporting to leave existing precedent undisturbed. Perhaps the Court will say that viability now occurs earlier than it did in 1973--which is sort of true but irrelevant in Dobbs. Earlier this month, the Guinness Book of World Records recognized a baby born at 21 weeks gestation as the most premature infant ever to survive. That's terrific news for the baby and his family, but as even the physician who achieved this medical miracle acknowledged, at 21 weeks the odds against survival are very very long. And also, 21 weeks is not 15 weeks. Put simply, if the Court wants to rule for Mississippi and lie about what it's doing, the falsehood will be apparent for anyone who cares to see it.

So maybe the Justices are planning to tell the truth. The Supreme Court does not review federal appeals court judgments that correctly apply current case law, unless they conflict with other lower court rulings (and the Fifth Circuit decision does not) or the four or more Justices who voted to grant review are considering changing the law. Accordingly, there is a good chance that the Court will eliminate or curtail the abortion right in Dobbs.

Regular readers of this blog know I would not welcome that outcome. An amicus brief on behalf of myself and twelve other constitutional scholars offers the Court reasons why it should not overrule its abortion precedents. In the balance of today's essay, I want to highlight two very bad amicus briefs filed in support of Mississippi. Interestingly, they come from prominent opponents of representative government.

Wednesday, November 24, 2021

Beyond Rittenhouse: The Future of an Armed Public

 by Michael C. Dorf

In two articles published earlier this year, I addressed the problem of armed clashes at rallies, marches, and protests, referring to the Capitol insurrection and other lethal events--including Kyle Rittenhouse's conduct--in the introduction to each article. Because I do not teach, nor am I otherwise an expert in criminal law, I do not have anything especially noteworthy to add to the voluminous commentary that we have already seen on the Rittenhouse verdict last week. Instead, I'll focus my attention on the broader problem of political violence and the still broader problem of gun violence. I shall, however, refer back to one aspect of the Rittenhouse case below.

Tuesday, November 23, 2021

The Dangers of Political Despair, or, Put On a Happy Face

by Neil H. Buchanan
In one of my Dorf on Law columns last week, I acknowledged the glaringly obvious reality that my mood in writing about the future of the US political system can reasonably described as despondent.  I then added: "Even people as pessimistic as I am, however, never quite give up hope.  I have never told anyone, for example, not to bother trying to save the American constitutional system.  Indeed, I have said that I admire people who are unwilling to give up until the fight is finally lost."

It turns out that I am hardly the only person who is struggling with the sense of doom that hangs over American constitutional democracy.  More than 150 academics have now signed a letter calling on Democrats in the Senate to suspend the filibuster and pass the Freedom to Vote Act.  They write: "This is no ordinary moment in the course of our democracy. It is a moment of great peril and risk."  They say that all is not yet lost: "Defenders of democracy in America still have a slim window of opportunity to act."  And then the pessimism: "But time is ticking away, and midnight is approaching."

That was a good letter.  People who follow the US political scene cannot help but groan upon reading it, however, because there is still apparently zero chance that Joe Manchin and Kirsten Simema will do what is necessary.
Should despondency thus give way to despair?  No, but the political imperatives are going to make the next few years truly odd, even if we find a way to thread the needle and move back toward political sanity.  How can we alarm people enough to motivate them but not so much that they simply give up?

Monday, November 22, 2021

Interpreting Law and the Useless Debates Over Textualism and Purposivism

 By Eric Segall

                                                                              "Stop Worrying Where You're Going, Move On"                                                                                                                                                                                                                                                              Stephen Sondheim, Sunday in the Park with George                                                                                                        

Is a fish a "tangible object" in a statute designed to combat white collar and other economic crimes? Does someone "carry" a gun in violation of federal law when the gun is in the glove compartment or trunk of a car?  Does the phrase "discrimination because of sex" in a federal employment discrimination statute prohibit adverse employment decisions based on LGBTQ status. These and many other issues have led to battles among Supreme Court Justices, lower court judges, and academics about the proper way to conduct statutory interpretation.

Over the last few weeks, I have had the distinct pleasure of discussing statutory interpretation with and in front of current and former judges, lawyers, and academics. I have been thinking deeply about these issues ever since 2015, when one law professor and one think tank libertarian tried to invalidate the Affordable Care Act, maybe the most important federal law passed since the Voting Rights Act of 1965, based on four words which they took completely out of context and by ignoring numerous other passages in the law as well as the dominant purpose of the law. That case was ridiculously easy, as I wrote in The Atlantic, but almost every term the Supreme Court faces much more difficult interpretative questions and, of course, the lower courts face these issues on a regular basis.

Friday, November 19, 2021

A Potentially Friendly Amendment to the Buchanan/Dorf Debt Ceiling Work Disguised as a Misguided Critique

 by Michael C. Dorf

A new article in the Yale Law Journal by Emory law professor Matthew Lawrence argues that in deciding separation of powers cases, courts ought to take account of racial, sexual, class-based, and other forms of subordination in addition to the other values--such as liberty and efficiency--that concern courts and scholars. I much agree. Insofar as text is unclear, as it typically is in the cases of concern, there is no reason to exclude such important constitutional values from the calculus. I thus have no quarrel with Professor Lawrence's core thesis and indeed welcome it.

But--yes, there is a but--in the course of illustrating his thesis, Professor Lawrence invokes the debt ceiling scholarship that I have co-authored with Professor Buchanan as a principal example of the sort of equity-disregarding or worse, even equity-undermining, position he is arguing against. In so doing, he misreads us and the broader literature.

Thursday, November 18, 2021

Anti-Environmentalism for the Good of the Poors

[Note to readers: In my new Verdict column today, "Democracy Is Dying, But We Do Not Have to Lose Our Souls," I confront one of the more shocking comments that I have seen recently from a non-Republican.  Earlier this week, Washington Post columnist Max Boot casually but enthusiastically encouraged Joe Biden to contrive a "Sister Souljah Moment," suggesting that Democrats distance themselves from anti-racists by targeting and denouncing people who Boot thinks are harming the Democrats' brand.
[I honestly never thought that I would see someone invoke the Sister Souljah controversy as a positive model for political strategy -- certainly not someone who otherwise so often makes intelligent contributions to the political discourse.  I frame my shocked response around an extended reference to a Stanley Kubrick film, "Paths of Glory."  That rhetorical setup might or might not work for readers, but I thought it was important to put under the glare of an appropriately harsh light Boot's bland suggestion that Democrats should scapegoat relatively powerless people (which, by the way, would potentially put those political patsies in very real danger).
[In any case, as I mention in that column, I hope at the very least that some people will now decide to watch that classic film.  It happens to be a great courtroom drama, which fits with the legal themes of Dorf on Law and Verdict.  But sometimes, greatness is simply greatness and should be enjoyed for the pure beauty of it.]
By Neil H. Buchanan

Two days ago, in "The WhatAreYaGonnaDo Response to Climate Change" here on Dorf on Law, I responded in part to a soft-spoken rendition of climate denialism.  That is, a colleague at one of my recent talks had stated in matter-of-fact terms a triumvirate of claims to insist that the government should not try to address climate change.  The first two arguments were that (almost all) scientists might be wrong and that the climate changes naturally, both of which we usually encounter in shrieking tones on right-wing media or on Republican politicians' web pages and Twitter accounts.

Tuesday's column included my brief response to the first point about scientific uncertainty, followed by a much longer response to the claim that the climate changes naturally (which is where the title of the piece came from).  Rather than provide even a brief thumbnail of the argument, I will leave it to readers to go back to that column, if they so desire.  I do want to emphasize that those two arguments are pretty much all that we ever get from the right on climate change.

The third argument, while not new, is relatively unknown and has the twist of seeming to put progressives on defense by asserting that there is a tradeoff between two of our core commitments: helping poor people and fighting climate change.  Is it true that we should be burning more coal to help poor people, so that the most humane path forward is to trash the planet by letting private industry do whatever it wants?  No, but at least this argument has some interesting twists and turns.

Wednesday, November 17, 2021

Mistaking Inferences for Penalties

by Sherry F. Colb

Earlier this week, I listened to a debate on Intelligence Squared about whether Cancel Culture is toxic. As I knew would happen before the debate even began, the participants soon started arguing about whether Cancel Culture exists. Two believed that it does and two that it doesn't. If you think that Cancel Culture is a myth, then you are likely ignoring a lot of undisputed facts on the horizon (sorry). And if you believe that free expression means that no one should be able to draw inferences about you from what you say, then you are at war with the rules of logic. 

Of course there is such a thing as Cancel Culture. What do I mean by that? I mean that people who have said things that were either unpopular or insensitive or even offensive have faced consequences that were grossly disproportionate to what--if anything--they deserved. An atmosphere in which people of good faith routinely feel the need to say "I would never state this publicly, but...." is a Cancel Culture, and one cost of living in a Cancel Culture is that the apparently prevailing normative view of things might in fact bear little resemblance to the actual prevailing normative view of things. 

I will not specify examples of it here  because no matter what example I choose (and there are quite a few of them), I know that some readers will loudly condemn me for disagreeing with them about whether a particular person who voiced an unpopular/insensitive/offensive idea deserved to be treated like the second coming of Josef Goebbels or David Duke. Suffice it to say that disproportionate responses to relatively innocuous expression is easy to identify, and I'm happy to be more specific (and I have been more specific) with the small number of people I completely trust. Michael Dorf is one of the people in this trusted group, so he can confirm for skeptical readers that I am right and that trying to self-censor to avoid clear threats of demonization is exhausting and wastes energy that could be directed at trying to solve society's problems.

At the same time, however, when people say things, their statements give rise to logical inferences, and it is neither realistic nor fair to demand that nobody draw any inferences as a condition of free speech. Say John Doe makes the following statement to his friend Jason Roe: "You know women today are so demanding. It used to be that they cleaned the house, did the shopping, satisfied you sexually, and shut the fuck up.  Now everyone 'believes women,' and we have to apologize for having a dick. I really miss the good old days." Imagine that John Doe is a law professor and that some students overhear his comments.

No one is under an obligation to think that what John said is consistent with John being something other than a complete asshole. Was he free to say what he said? Sure. But people who heard it are also free to think he is a creep and a misogynist. Women are free to decide that despite his good looks, they will not be dating him any time soon. He is not entitled to people's good opinion. There is regrettably a shrinking space for permissible chit chat, but I would locate what Doe said as falling outside even a very capacious and generous space, one that we might have encountered ten years ago.

Tuesday, November 16, 2021

The WhatAreYaGonnaDo Response to Climate Change

by Neil H. Buchanan

I have been back on the road this semester, again giving talks to mostly academic audiences regarding two of my primary research interests: intergenerational justice and a critique of orthodox economics.  Although the UK and EU are still in various stages of partial reopening, I have been fortunate to be welcomed back onto several campuses by colleagues during my sojourn on this side of the pond.
As always, the exchanges are stimulating and intellectually productive -- sometimes in unexpected ways.  During the discussion period after one recent lecture, for example, I was surprised to find myself responding to one questioner's blunt climate denialism.
My surprise was the result of two things.  First, the substance of my lecture was not focused on the question of climate change itself.  To be sure, I brought up the topic and took a position on it, but I did so as a way of setting up what I thought was a more interesting question about how to compare different threats to future generations.  Still, Q&A is designed to be listener-driven, and there is nothing wrong with a person picking up on a non-central point and pursuing it.  Indeed, that sometimes leads to fruitful discussions and even to fresh thinking that can inspire entirely new research projects.
The second reason that I was surprised, however, was that the questioner adopted a particularly unvarnished version of the don't-worry-be-happy response to catastrophic climate change.  Again, there is nothing especially unusual about people exploring -- especially in an academic setting -- off-the-wall ideas or extreme arguments.  Even so, when a question ultimately relies on a set of presumptions and implicit moral choices that are well-nigh indefensible, it continues to startle.

Even outrageous claims, however, can generate insights.  Here, I want to explore polite versions of what are in fact rather familiar anti-environmentalism arguments from the right.  Working through what makes them so extreme is, I think, clarifying.

Saturday, November 13, 2021

The Spurious Constitutional Issues in the OSHA Vaccine Mandate Litigation

 by Michael C. Dorf

Yesterday, a panel of the U.S. Court of Appeals for the Fifth Circuit stayed the Biden Administration's vaccine mandate for employers with 100 or more employees. The bottom line is wrong but not entirely unreasonable, as I shall explain. However, in the course of its opinion, the Fifth Circuit states (but does not ultimately rely on) an extremely dangerous view of two constitutional issues: the scope of congressional power under the Commerce Clause and the limits on congressional power to delegate rule making authority to federal agencies. Its statements on these points are reactionary. Unfortunately, at least one of them may portend an unwelcome doctrinal change from the conservative supermajority on the Supreme Court.

Friday, November 12, 2021

For the Alternative Medicine Community, the Fact that Ivermectin has not been Approved for COVID is a Feature, not a Bug

 by Michael C. Dorf

In his terrific new book, Choose Your Medicine: Freedom of Therapeutic Choice in America, historian and law professor Lewis Grossman traces the expert-skeptical democratic strand of American thought about health and medicine to centuries-old patterns. Such expert-skepticism is hardly irrational. For most of human history, a healthy skepticism towards mainstream medicine was, well, healthy. Horrors like the 1799 deathbed scene of George Washington that Grossman recounts were all too common. To treat the Father of our country, "who was suffering from a severe throat infection," doctors "dosed him with calomel and tartar emetic, applied blisters to his throat and legs, and drained about half of the blood from his body."

Even today, too much medical practice relies on habit and anecdote. For example, many obstetricians prescribe bed rest for a wide variety of pregnancy complications, despite the evidence that bed rest does not improve patients' conditions and adds additional risks. The longstanding current of health libertarianism that Grossman documents is a not-entirely-unreasonable response to the arrogance and quackery one finds in the mainstream medical profession.

Yet, increasingly, the movement for evidence-based medicine makes across-the-board skepticism not just unwarranted but itself dangerous. Indeed, it is not even across-the-board skepticism. People rarely replace faith in one institution with consistently critical thinking. Instead, they typically replace one kind of faith with another. Thus, what starts in skepticism becomes ingenuousness.

Thursday, November 11, 2021

Government as All-Powerful Demon: The Emptiness of Pre-Trumpian Conservatism

by Neil H. Buchanan
Big Bird (who, I now know, is supposedly six-years-old) publicly announced that he had been vaccinated as soon as anti-Covid shots were approved for school-aged children. Ted Cruz found out about this and -- not having any interest in doing his job -- used his Twitter-troll time this week to grumble: "Government propaganda ... for your 5-year-old."
Notwithstanding the various forms of snark that I tossed into the paragraph above, Cruz is not my focus here.  He happens to be endlessly mockable, but I want to use his own-the-libs tweet simply as a recent, vivid example of something that conservatives have been doing for generations: personifying and then vilifying this thing called The Government.
This particular culture-war moment will soon be forgotten.  What is interesting is that even after having become completely Trumpified, movement conservatism still lapses back into tired tropes about Big Brother.  Is it good news that they still have nothing to say that is non-embarrassing?

Wednesday, November 10, 2021

The Troubling Phenomenon of Enforced Unlaws

by Matthew Tokson

Recently, ProPublica broke a remarkable story about Black children in Tennessee who were jailed for a crime that didn’t exist. A juvenile court commissioner charged several children for witnessing a fight between two other children and failing to stop it. This is not a crime in Tennessee. But there was a video of the fight on YouTube, and the police officer investigating it wanted to charge the onlookers with a crime, perhaps because the fighters themselves were too young to be charged. She and a judicial commissioner at the local juvenile court dug through Tennessee’s laws and found a “Criminal responsibility for the conduct of another” statute, which described general principles of accomplice liability but did not itself define any crimes. They used this statute as the basis for an arrest petition, and police arrested several children at their elementary school later that day. Ten children were ultimately charged in the case, six girls and four boys. All four boys were jailed pending a court hearing. 

This was a particularly egregious example of the phenomenon I will call “enforced unlaws,” where law enforcement officials invoke pseudo-laws in order to justify extralegal enforcement practices. These unlaws are generally invoked by officials who seek to justify the enforcement of discriminatory norms in situations where no legal basis for enforcement exists. In the Tennessee case, a white police officer invented charges to use against Black children, four of whom were deemed a threat on no discernible evidence and confined to a detention center pending review of their cases. Enforced unlaws have also been used to justify the use of police authority against other targeted groups, including LBGT+ persons, immigrants, activists, and more.

Tuesday, November 09, 2021

The Attack on Academic Freedom at the University of Florida Might -- Might -- Boomerang in a Good Way

by Neil H. Buchanan

The University of Florida, my home institution, is in serious damage-control mode.  As I explained in a column last Friday, the administration of the state's flagship campus recently decided that several of my faculty colleagues could not testify in lawsuits that have been brought to challenge policies enacted by Florida's current group of ruling politicians.  Late last week, the administration then partially reversed course after receiving tons of negative attention and condemnation from around the U.S. and the world.
I say "partially" because there is still some uncertainty as to what is and is not allowed at this point, with some possibly-expansive prohibitions against using "university resources" apparently still in place  The university's administration has created a task force to try to come up with a better policy, which should not be especially difficult, given that there are longstanding best practices at the top public universities in the country.  Even more simply, we could go back to the way things were before the politicians stepped in and messed things up this year -- although, as I will emphasize below, that will only work if it is part of a credible commitment to reassure everyone that this will not happen again.

In last week's column, I made two major points.  First, a university spokesperson had tried to justify the outrageous limitations on faculty activities by saying that testifying in cases where the defendant is the State of Florida is a matter of an employee of the state government doing things that are "adverse to the state."  I argued that "the state" for which my colleagues and I work is not personified by the current occupants of various political offices, and when any of us work to reverse or modify a state law -- most importantly the state's new voter-suppression law (substantially similar to the recent Georgia and Texas anti-voting laws) -- we are not being adverse to the state.  We are, in fact, doing exactly what the people should want us to do: using the expertise that made us worth hiring in the first place to point out when the state's politicians have made mistakes.

In other words, l'├ętat n'est pas le roi.  Yes, I know.  Invoking a French term in a country where many politicians insisted on renaming pommes frites "Freedom Fries" is a risky move.  Seriously, however, just as the oath that military service members recite is a commitment to the Constitution rather than the President, so is a university professor's job the pursuit of the truth, not mindless support for the politicians currently in power.

My second major point in last Friday's column is where I want to pick up today.  I argued that the state's politicians who pressured UF's administrators to make this mistake -- unless, as one commenter on my column suggested, this is a matter of the administrators anticipating what the politicians wanted, without being asked -- now have a serious problem.  They have put a major blot on the reputation of this university, undermining the progress that was made possible by the university's supporters in and out of government, who for years have provided the resources necessary to allow UF to rise in the all-powerful rankings.  That damage, I argued, is very difficult to reverse.

Building on that argument, it is important here to take the next step and ask what the politicians in the state will do next.  As the title of the column suggests, this could paradoxically end up being good for the university.  If not, however, things could take a very bad turn.

Monday, November 08, 2021

Injunctions Against State Judges Are Appropriate in the SB-8 Litigation

 By Eric Segall

If you are reading this blog, you are almost certainly aware that last week the Supreme Court heard arguments regarding the constitutionality of Texas law SB-8 which prohibits all abortions in Texas after six weeks but provides only civil, not criminal, enforcement of the statute and only by private actors. This obviously unconstitutional law under still binding Supreme Court precedent was the brainchild of a former Justice Scalia clerk (of course) and its intent was to 1) stop most abortions in Texas, and 2) preclude any meaningful pre-enforcement review of the law. 

It appears that at least two or three of the conservative justices will side with the liberals to strike down the law mostly because they were worried that blue states could pass similar laws regarding gun and free exercise rights. In this blog post, I want to focus on one of the re-occurring issues that came up in the oral argument: can federal judges issue injunctions against state court judges? 

Friday, November 05, 2021

Administrators Have Inflicted Damage on the University of Florida: How Much Can It Be Mitigated?

by Neil H. Buchanan
The University of Florida found itself in an unwelcome spotlight this week.  Under an unconvincing and evolving set of rationales, the university's administration had limited the ability of several UF professors to provide expert advice in legal cases challenging policies adopted by the current Florida legislature and governor.  A Miami Herald article lays out the facts of the situation nicely.

As I will explain momentarily, these decisions and public relations blunders have already damaged the University of Florida's national and global reputation.  As a professor at UF's Levin College of Law, that damage concerns me greatly, not only because of its effect on my colleagues but for the collateral effects that it will have on our students.
There is, unfortunately, no way to un-ring this bell.  Damage has been done.  The only question now is how quickly the university can change course and try to contain and mitigate the repercussions.  We received part of that answer today, when the university reversed its policy and announced the formation of a task force to sort things out.  Is that enough to make it all go away?
The short answer, unfortunately, is that reputations are difficult to build but all too easy to damage.  Any harm to a reputation has lingering effects, even when the situation is corrected quickly.  This case is especially unfortunate in that the damage comes not from something beyond the university's control.  Indeed, the administration has engaged in what my students would call a "self-own," harming all of the stakeholders of our university for absolutely no reason.  Damage control is now necessary, with the welcome reversal of this bad policy to be followed (one hopes) by clarifying the university's commitment to its own stated principles.

Thursday, November 04, 2021

Critical Race Theory and the 2021 Election

 by Michael C. Dorf

For Democrats like me, the results of the off-year election just held are very concerning. How concerning? Here's what I tweeted yesterday morning:

My "optimistic" take on the election results: If current trends continue, Republicans will win back Congress in '22 & prez in '24 w/o needing to lie about and override the vote. We will have awful policy, including voter suppression, but some semblance of democracy could survive.

That bit of sardonic humor prompted one Twitter follower to observe that my bleak outlook sounded more like my co-bloggers Prof Buchanan and Prof Segall than my own apparently often more sanguine self. To be clear, although my tone is not necessarily as apocalyptic as theirs, there's not a lot of daylight between our substantive views and projections. Perhaps I'm just better at hiding it when I want to write about something other than impending doom.

And guess what! Today I want to write about something other than impending doom. In particular, I'm going to offer some unsolicited advice to Democratic candidates and their campaign managers in the hope that elections will continue to matter in the future. Although I realize it isn't exactly my lane, I want to talk about messaging. I'll focus on the role of "critical race theory" in the Virginia gubernatorial race.

Wednesday, November 03, 2021

Closing the Loop on Anti-Government Dogma: Is Every Tax Unconstitutional

by Neil H. Buchanan
How far will Republicans go with their anti-tax jihad?  Long before any reality TV bigots came along, America's conservative party defined itself by its opposition to taxes.  They claim to hate deficits, and they certainly hate any government spending that helps Those People, but even when they have been given the opportunity to trade $1 of increased taxes for $10 of spending cuts, the self-styled Party of Fiscal Responsibility emphatically rejected any increases in tax revenues.

Last week, in the midst of everything else that is going wrong in the world, Republicans' anti-tax mania was given the opportunity to rear its ugly head when Senate Democrats proposed their so-called Billionaires Tax (BT).  Conservatives immediately claimed that the BT was most assuredly -- for some reason to be determined later -- an unconstitutional abomination, so I wrote a Verdict column explaining that the BT was not only constitutional but trivially so.  I followed up here on Dorf on Law with a column responding to an over-the-top recitation of anti-tax dogma from one of The Washington Post's resident conservative ideologues, whose rant was inspired by the BT but went far afield in making absurd assertions.

With a bit more time to think about it, I decided that the most interesting thing about the BT was not the proposal itself but the insanity of the arguments that had been offered from the right claiming that the tax simply has to be unconstitutional.  That is the more interesting issue for three reasons: (1) As anyone who has observed the Democrats for even a millisecond might have expected, they quickly abandoned the BT; (2) Even if the BT had been enacted, Republicans in the next Congress would have repealed it long before it could have reached the Supreme Court; but most importantly (3) the arguments that conservatives trotted out against the BT might well be repurposed to attack other taxes.
Even in the dystopian post-constitutional future that I have predicted, Republicans might find it more useful to use the courts to repeal progressive taxes than to do so through legislation.  If so, it would be interesting to think about what legal fig leaves they would use to hack away at the taxes that they hate.  I thus wrote a two-part Verdict column (published on Monday and this morning), laying the groundwork to explain how conservatives might try to twist the Constitution and a very bad (but not exactly overruled) precedent to go after taxes that are far more familiar than anything like the BT.

Here, I want to summarize just how wrong the conservatives' anti-tax constitutional analysis is (an analysis joined in part by some liberals, for some reason).  To the extent that I have not lost my entire potential readership by now, I will offer this teaser: Taking conservatives' anti-BT arguments seriously leads to the conclusion that all taxes are unconstitutional.  Even after democracy dies, the one-party state will need money.  Where will it turn?

Monday, November 01, 2021

Two SCOTUS SB8 Oral Argument Hot Takes: On Constitutional Remedies and Novelty

 by Michael C. Dorf

Today's oral argument in the two SB8 cases produced a great many interesting moments. I'll leave the reading of the tea leaves to others. Here I want to focus on two sets of questions.

The first was an exchange between Justice Barrett and Marc Hearron, the lawyer for the Center for Reproductive Rights, who represented the private-party plaintiffs in the first argument, Whole Woman's Health v. Jackson. It involves the question whether there is a constitutional right to prospective injunctive relief issued by a federal court. Mr. Hearron gave what I thought were suboptimal answers, but the correct answers ought not to have damaged his overall case.

The second set of questions arose in the first case but primarily were discussed in the second one, United States v. Texas, when newly minted Solicitor General Elizabeth Prelogar pushed back against questions by Justices Thomas and Gorsuch (as well as others), who wanted to characterize the cause of action and relief sought by the United States as unprecedented. Any novelty, she argued, was a response to the novel means by which Texas was seeking to evade the supremacy of federal law. As I'll explain, the SG did an excellent job. As I'll also explain, it's possible that the conservative Justices will wrongly group this case with other cases in which novelty is at issue.

The Sweet Spot Between the Cletus Safari and the Herman Cain Award

by Michael C. Dorf

Ever since the 2016 election, journalists for mainstream centrist-to-liberal outlets like the NY Times, Washington Post, and NPR have periodically ventured into Trump territory to listen to what the volk have to say. This sort of travelogue is so common that it has even earned a pejorative nickname:  a "Cletus Safari", after a stereotypical hillbilly character on The Simpsons. The Cletus Safari is often at least ostensibly sympathetic. Look. Sure, these white working class folks in the Rust Belt or rural America sound like racist and xenophobic theocrats, but you have to understand that ever since the plant closed and the opioid crisis hit, they've had it hard, so that's just projection.

Admittedly, even the ostensibly sympathetic Cletus Safari is patronizing in the way that attributions of false consciousness always are. But despite that and many other problems, Cletus Safaris usually do not traffic in overt hostility for their subjects.

Contrast the Cletus Safari with the Herman Cain Award--a subreddit that glories in reporting on how people who once downplayed or denied the risk of COVID-19 were later infected by and succumbed to it. It's understandable to feel somewhat less sympathy for such people than for, say, Colin Powell, who had received two doses of the vaccine and was about to get a booster, when he succumbed because he had a blood cancer that inhibited his immune response AND because the ambient level of COVID in the U.S. is higher than it would be if we didn't have so many anti-vaxxers and anti-maskers. Still, the Herman Cain Award itself is grossly insensitive. It's the kind of thing that gives schadenfreude a bad name.