The January 6th Insurrection (a Dorf on Law classic)

Note to readers: This is my final column of 2021, and there truly is no alternative but to re-post the column that I wrote on January 7, less than a day after Trump-incited seditionists stormed the U.S. Capitol in an attempt to overthrow the government and the Constitution.  Now that this horrible year is almost over, even my game attempt at optimism in the final full paragraph of that column seems hopelessly naive.  Nonetheless, I will end here as I did on January 7: Peace!

 

 

by Neil H. Buchanan

 

The United States, I have suggested more than once, is quite possibly a "dead democracy walking."  After returning to that metaphor in a column barely more than a month ago, I wrote: "If we are too far gone to prevent the worst from happening -- if the end is only a matter of time -- then the best we can do is to prepare for what is inevitable.  The beginning of such preparation is a clear-eyed assessment of where things stand, understanding why it seems certain that things will still turn out badly."

 

To try to put this in personal terms (and to steer the metaphor away from its original use to describe the victims of state-sponsored death), imagine receiving the devastating news that you have contracted a deadly disease and have only a short time left to live.  Thankfully, I have thus far never been confronted with anything even remotely along those lines.  I can imagine, however, that no matter how much one tries to anticipate what the process will be like when the pain and breakdown ultimately become unmistakable, the actual experience of symptoms would still come as a shock.  The vestiges of denial and hope on which one relies for solace begin to flicker.

 

Yesterday felt like that, as I watched the news from Washington.

By now, it has become a cliche to predict the worst and then say, "I hope I'm wrong."  The sentiment is a good one, but as far back as the early Obama years nutcases like Glenn Beck (remember him?) were predicting that our first Black president would lead a fascist/communist/Muslim/socialist takeover, only to turn to the camera and say with wide-eyed mock innocence: "I hope I'm wrong."  As I sit and think about yesterday's terrifying events at the United States Capitol building, I certainly am not tempted to say, "See, I was right all along!"  I am saying not only that I wanted to be wrong but that even though something like this has long seemed inevitable, seeing it happening was still a shock.

My thoughts are too jumbled right now to allow me to pen a longer piece, so I will point to two of my Dorf on Law columns that seem especially relevant.

The first, which I have already republished as a Dorf on Law "classic" over the recent holidays, is titled "There Will Be (More) Blood," originally published on October 20, 2020.  It includes this:

"Most importantly, the biggest story continues to be that Trump simply cannot stop encouraging his most extreme supporters to be ready to support him with violence.  Blood has already been shed because of Trump this year.  Shockingly but not at all shockingly, he seems to want more blood to flow."

"The second article, published four years earlier to the day (October 20, 2016), is titled "Donald Trump, Insurrectionist."  Discussing the third presidential non-debate before that fateful election, I wrote:

"Donald Trump announced at the debate that he will not accept the results of the presidential election, unless he wins.

"If that is not a plan to foment insurrection, I do not know what is.  This is not the kind of thing that one says lightly, but it is chillingly accurate.

 

...

 

"Trump has now announced to the world that his losing will prove that the election is rigged against him.  He will thus arrogate to himself the right to say that he did not lose fair and square.  If you are not scared, you should be."

Perhaps yesterday's events -- a riot incited by the man who is still somehow President of the United States -- will change history in a good way, somehow purging our body politic of the disease that has been killing us for these long, depressing years.  I hope so.  The Trump mob did not achieve its goal yesterday, and that is good.  Maybe this will break the fever, but even if it does, we have a long path to recovery ahead of us, and success is by no means guaranteed.

 

Peace.

 

The Court's 2020-2021 Term: Justice Alito and Judging at its Worst

By Eric Segall

There are so many things disturbing about Justice Samuel Alito that it is hard to know where to start. I will get to this year's term below but let's begin with the fact that from his confirmation in 2006 to the day Justice Kennedy retired in 2018, according to Adam Feldman of the Juris Lab, not once did Alito vote with the liberals in a 5-4 case. Not once. That statement is not true for the three other most conservative Justices--Thomas, Scalia, and Roberts--who served during that period.

Off the Court, as I previously documented here, Alito has made unethical speeches to the Federalist Society and Catholic organizations lamenting the threat to religious "liberty" allegedly caused by the Court's gay rights decisions while cases raising that very tension were/are percolating in the lower courts. And who can forget his infamous mouthing of the word "no" during a State of the Union Address by President Obama?

But it was in 2021 that Alito outdid himself. In a number of important cases he made misleading and overbroad statements even by the loose standards of Supreme Court opinion-writing. With six conservative Justices now ruling the Court and the land, there is a lot of awful Alito yet to come.

The Serious Side of Silly Political Theater: Republicans' Challenges to Biden's Electors on January 6 (a Dorf on Law classic)

Note to readers: The middle of the week between Christmas and New Year's Day is the time for Dorf on Law classics.  Today and Friday, I am posting a pair of columns that discussed the January 6 certification process for the 2020 presidential election.  Today's column ran on December 16, 2020, three weeks before the session; and Friday's ran on January 7, 2021, the day after.  Note that in the final paragraph of today's classic, I refer to the then-upcoming certification vote as a "nonserious" event.  It was nonserious, as a legal matter.  But we now know that it was extremely serious in every other way.

 

by Neil H. Buchanan

Mitch McConnell made news yesterday by acknowledging on the floor of the United States Senate what every sane person has known for weeks: "Today, I want to congratulate President-elect Joe Biden."  This is a big deal only because McConnell had insisted on silently abetting Donald Trump's attempted coup over the past six weeks.  Even so, it is important because McConnell could have chosen to continue to be silent -- or even suddenly to adopt a vocal stance in favor of Trump's madness.  So this is good.

Of course, McConnell used some strategic wording.  I was particularly annoyed that he described the election in this way: "The Electoral College has spoken."  I am not saying that this is false.  Indeed, the Electoral College's vote was the precipitating event for McConnell's long-delayed acknowledgement of reality.  Even so, he could instead have said: "The people have spoken."  Or at least something like this: "The Electoral College has reflected the will of the people under the law."

 

But given that McConnell is the leader of a party that has lost the popular vote in seven of the last eight elections, winning two of those only because of the anti-democratic design of the Electoral College, he apparently thinks it important to say that what matters is that the Electoral College has spoken, not the people.  If, as I have recently predicted, Republicans at the state level now try to make it easier than it was in 2020 to overturn the will of the voters to appoint non-majority-backed Republican electors in 2024 and beyond, McConnell cannot afford to be heard to say that the people's will matters.

This means that even McConnell's grudging acceptance of reality references the basis for future minoritarian rule.  He also is surely going to do everything possible to block Biden's nominees for the judiciary and executive branches, to strangle the economy, and so on.  Mitch gonna Mitch.

Even so, McConnell did reportedly make another surprisingly positive decision yesterday, which was to tell/beg his fellow Senate Republicans not to go along with Trump's attempt to use the January 6 ceremonial congressional counting of votes as a last stand.  What is that all about, and what if McConnell fails to keep everyone in line?

Dopesick, Doctors, and Addicts

 by Sherry F. Colb

I recently watched and very much enjoyed the television mini-series Dopesick. It offers a (barely) fictionalized account of the unbridled greed of Purdue Pharma and the Sackler family. The story was recently in the news again when a federal judge overturned a bankruptcy settlement that had mostly shielded the Sacklers' personal assets from lawsuits against the company and its shareholders. The Sacklers themselves, the greedy people who marketed poison to the masses in order to get richer, may therefore have to pay out of their own pockets for some of the damage that they did. 

The story involves a drug called Oxycontin, an opioid that Purdue Pharma (i.e., the Sacklers) claimed was not addictive. The company sent out drug representatives to market Oxycontin ("Oxy") directly to doctors. In the show, a kind and decent doctor played by Michael Keaton prescribes the drug because he believes what the rep has told him: the Oxycodone in Oxy is coated and therefore enters the person's system gradually and does not cause addiction. The falsity of this claim becomes increasingly clear as crime skyrockets in Appalachia, where chronic pain is endemic. As patients become addicted to the drug, they simply must have it, even if that means robbing a pharmacy or their parents' jewelry box.

Abortion and the Slippery Slope

 by Sherry F. Colb

During the Supreme Court argument in Dobbs v. Jackson Women's Health Organization, Justice Barrett asked the Mississippi Solicitor General, "Would a decision in your favor call any of the questions--any of the cases, sorry, that Justice Sotomayor is identifying into question?" Justice Sotomayor had expressed the concern that overruling Roe v. Wade would call into question other substantive Due Process cases like Griswold v. Connecticut (married contraceptive use), Lawrence v. Texas (same sex relationships), and Obergefell v. Hodges (same sex marriage).

The Mississippi Solicitor General said no, invoking two reasons. The first had to do with stare decisis and reliance interests. The second reason was that "none of them [Griswold, Lawrence, Obergefell] involve the purposeful termination of a human life." Most people listening to this exchange understood that to be a lie. The State of Mississippi almost certainly will not stop at prohibiting abortion while continuing to accept without challenge all of the other privacy rights protected in the past. In this post, I nonetheless want to explore a connection between the various rights at issue (including abortion) that challenges the "human life" distinction that the Mississippi SG drew.

The Right's Talk of Civil War is Incitement to Terrorism

by Neil H. Buchanan

In the category "Most Relentlessly Pessimistic Columnist," I would probably be the John Oliver of the Downer Awards.  My pessimism about the political situation in this country has been on ready display at least since mid-2016 (no coincidence there), but in fact I have been watching with dismay for most of my adult life as the steady march of movement conservatism -- abetted and even worsened by Bill Clinton/Tony Blair style capitulation -- has made it nearly impossible to imagine anything but a bad outcome.  I concede that I was briefly willing to think positively from about 2006 through 2010, but that ended up being more about hope, with the change being an enormous backlash and acceleration of previous negative trends.

My column here on Dorf on Law yesterday was another in a long line of pieces (Tuesday's Verdict column being another example) in which I excoriated the wimpy centrists and center-lefties in the U.S. for their unwillingness to wake up and deal honestly with the reality that confronts us.  I did, however, stipulate that the true villains of the story are the people to whom these timid souls are failing to stand up.  I have always been skeptical of the claims that there were reasonable moderates remaining in the Republican Party at any time in this century, and the voting records and public stances of, say, Tom Cotton and Chuck Grassley are now so nearly identical in substance that there is little sense in calling the former "extreme" and the latter "moderate" (or even "very conservative").

Today, I want to focus specifically on that extremism in the Republican Party, or more specifically on the emerging super-extremism that even I -- in my worst nightmares -- honestly never anticipated.  Are people on the right in this country now talking about civil war?  Incredibly, yes they are.

Democracy Can Die in the Sunlight, Too

by Neil H. Buchanan

 

There are plenty of reasons for people to live in denial.  Indeed, some element of denial is required to allow us to function in even the most basic aspects of our lives.  

 

The thing that we call money, after all, is a convention based on (nearly) everyone's willingness to pretend that money has value and is not just worthless pieces of paper along with bits of data in cyberspace -- a belief that becomes self-fulfilling and thus valid only when enough people believe it.  As I put it almost nine years ago, pretending that money is not imaginary constitutes a "group delusion" that is absolutely essential for a modern economy to function.

Even more fundamentally, what would happen if people were no longer able to compartmentalize knowledge of their own mortality?  At some point growing up, we become aware of the inevitabilities of our universe, but in various ways we figure out how to proceed without spiraling into despair.  As people grow older, some become convinced that they need to be more active and productive while there is still time, while others seem able to convince themselves that they can somehow never even grow old, much less face death.

And all of that is a good!  The many ways in which we ignore horrible truths -- as a vegan, I am occasionally overwhelmed by the knowledge of the horrific lives and deaths that humans inflict upon billions of sentient beings every year, yet most of the time I am somehow able not to think about any of that -- are part of being healthy, productive, happy people.

Obviously, however, there have to be limits.  Various psychological disorders include as part of their pathologies extreme levels of denial about any number of realities.  And well short of that, people can doom themselves to miserable "golden years" by refusing to confront the need to save for retirement.  "I'll be fine, because I have x years left to save for retirement," as x approaches zero.

When it comes to the death of American constitutional democracy -- a death that is completely avoidable, because human biology puts no limits on the lifespan of our system -- far too many people have responded to the growing reasons for alarm by escaping further and further into denial.  And that denial turns the not-entirely-certain end of the rule of law into an inevitable tragedy, one that is all the more agonizing because it is indeed avoidable.

Today's specific example: the debate over expanding the Supreme Court.

Why and How to Transition to Self-Driving Cars

 by Michael C. Dorf

A recent story in the NY Times reveals how Time Magazine's Person of the Year Elon Musk repeatedly over-hyped the self-driving abilities of Tesla's cars and pushed engineers to design the company's "autopilot" features to rely solely on cameras even though most experts in the field believe that self-driving cars should combine visual input with radar and/or lidar (similar to radar but using lasers). In today's column, I want to raise some questions about the real and imagined virtues of self-driving cars and also say a few words about the transition to them.

If you're wondering what expertise I have for this exercise, the answer is: very little; I own and drive a car that has some electronic assistance and self-driving features (a fairly awesome fully electric Ford Mustang Mach-e, about which more below); and as it says right at the top of the blog, DoL provides commentary on law, politics, economics, and more. Today is a more day.

What Do Incels and Suicides Have In Common?

by Sherry F. Colb

The New York Times recently featured a very disturbing story. Some people have been operating a web site that encouraged suicidal visitors to the site to kill themselves, including giving them instructions about how to do it. A bereaved mother spoke about losing her teenage son to suicide and learning later that he had been one of the many people to visit the website in question. As her son died, other online visitors encouraged him to continue what he was doing if he wanted to be a successful rather than an attempted suicide. His audience had also suggested the method that he used, and it was common enough to be known by its initials (identified in the podcast accompanying the written story but which I choose not to repeat here).

Covid-19 and the Delegation Doctrine: Absent Irrational Rules, Judges Should Stand Down

 By Eric Segall

On November 5, 2021, The Occupational Safety and Health Administration (OSHA) issued an emergency order  to protect the health of employees by mitigating the spread of the historically unprecedented Covid-19 virus. The order requires that employees of companies with over 100 workers either be vaccinated or wear a protective face covering and take weekly tests but also provides employers various methods to choose the best policy implementing those requirements.

The day after the rule was issued, the U.S. Court of Appeals for the Fifth Circuit, of course, stayed the emergency order pending judicial review, and it renewed that decision in an opinion issued on November 12. After similar cases were filed around the country, they were all consolidated into one piece of litigation pursuant to several federal rules of civil procedure, and then by lottery the cases were assigned to the Sixth Circuit. Yesterday, a panel upheld the rule with two judges in the majority (Stranch & Gibbons) and one judge dissenting (Larsen). The Sixth Circuit, thankfully, dissolved the stay of the rule entered by the Fifth Circuit.

The main arguments in the litigation, and the ones that divided the majority and the dissent, were whether OSHA had the proper or lawful delegated authority to issue its emergency order and whether if so Congress could constitutionally give it that authority. At the outset, I concede that reasonable people can disagree over the pros and cons of our huge administrative state, whether Congress should be issuing broad delegations of power to the vast federal bureaucracy, and whether Congress wrongfully avoids responsibility for difficult political decisions by doing so. 

On the other hand, given our large country and interconnected economy it is quite unreasonable to expect Congress to be able to legislate in detail with regard to climate change, new technologies, threats to interstate commerce, and, of course, once-a century pandemics. The appropriate balance is a hard one and where the sweet spot is between needed and proper delegations and improper abdications of authority is not easy to find.

But what should be easy is the question of what role unelected federal judges should play in sorting out the proper balance between and among the various issues and tensions described in the above paragraphs. Absent irrational or obviously unreasonable choices by Congress or federal agencies, judges should stand down. That deference was displayed by the Sixth Circuit majority and ignored by both Judge Larsen in dissent and the Fifth Circuit.

Social Movements, Parties, and Partisan Federalism

 by Sidney Tarrow

In response to former President Trump’s continued lies about voter fraud, legislators across the country are aggressively attempting to limit voting access and roll back the gains of an election conducted during a deadly pandemic. These proposed bills will make it harder to vote, target voters of color, and take aim at the very election changes — such as mail voting — that made the 2020 election not only successful but possible. According to a Brennan Center Report, as of September 27, lawmakers had enacted at least 33 laws with restrictive provisions in 19 states. Overall, legislators had introduced more than 425 bills with restrictive provisions in 49 states.

The most chilling prospect for the 2022 and 2024 elections is the army of MAGA movement activists who – at the urging of Steve Bannon – have been signing up to serve as poll watchers in competitive states across the country. On his War Room podcast, Bannon proposed in May: “It’s going to be a fight, but this is a fight that must be won, we don’t have an option,” “We’re going to take this back village by village … precinct by precinct.” According to Pro Publica, after Bannon’s endorsement, the precinct strategy “rocketed across far-right media. Viral posts promoting the plan racked up millions of views on pro-Trump websites, talk radio, fringe social networks and message boards, and programs aligned with the QAnon conspiracy theory.”

To be sure, the Brennan Center report went on to point out that during the same timeframe, nearly 1,000 bills with expansive provisions for voting were introduced in 49 states. Both of these efforts are a sign that the Trump era has left a heritage of “movement/countermovement interaction” within the institutions of American federalism -- to adopt the terminology of sociologists David Meyer and Suzanne Staggenborg. But although the regime of Donald Trump exacerbated this trend, the intersection of social movements, federalism, and party politics goes back well before Trump’s election. Indeed, we can only understand it if we look harder than legal scholars have done at what Heather Gerken calls “Federalism 3.0.”  The politicization of federalism is leading to what political scientist Jacob Grumbach calls states as “laboratories against democracy.”

Vulture Capitalism Comes to Your Cul-de-Sac

by Neil H. Buchanan

Is it a bad thing that fewer and fewer people own their residences?  Not necessarily, but as with all such questions, it depends on how well governments (federal, state, and local) structure and regulate the market for renting houses.  And as with all issues of legal structuring and regulation, the United States is failing miserably to protect people from powerful, ruthless predators.

Perhaps surprisingly, there is nothing inherently exploitative or even problematic about a situation in which people rent houses and apartments from non-resident owners.  It could, in fact, be a very good thing for everyone involved, and for our economy and society overall, for fewer people to own their own houses.  The problem is that this market can all too easily be allowed to operate in a way that makes renters easy pickings for those who have no boundaries or ethical limits.

This column is motivated by a piece in yesterday's Washington Post, "This block used to be for first-time homebuyers.  Then global investors bought in," which is part of The Pandora Papers project.  It is what good journalism is all about: deeply researched, connected to lived reality, and willing to draw connections that lead to important policy implications.  Given how frequently I excoriate the press, including The Post (and not only its op-ed pages), it is a pleasure to read this kind of long-form reporting.

It is also, however, in key ways naive and has the potential to reinforce bad public policy choices.  Sorting out the good from the bad is my mission here.

God Save the United States

 by Sherry F. Colb

I have lately been thinking about the world that our newly constituted Supreme Court will leave to us. These are the people who believe the free exercise of religion means the right to penalize other people for violating your religion (no cake for you Masterpiece Cakeshop v. Colorado Civil Rights Commission, no foster children for you Fulton v. Philadelphia). This view of "free exercise" really confuses the legitimate practice of one's religion with theocracy. The free exercise of religion also now entitles you to expose your neighbors to deadly diseases in violation of public health orders (Tandon v. Newsom). This particular religious freedom sounds like a radical libertarian vision, especially when combined with what a majority of Justices think about the right to bear arms.

I regard this kind of libertarianism as dystopic. The government, I think, has a legitimate role to play in preventing us from discriminating against one another on the basis of sexual orientation (or religion). The government also, I believe, has a significant interest in preventing the spread of a pandemic in settings in which people are singing and talking for hours indoors in a crowded space. And the government also has a strong interest in reducing the number of firearms people conceal in places like the New York City subway, where humans are often stressed out and frustrated because the trains are too crowded and often stop suddenly for minutes at a time when many are already late for wherever they are going.

If the Court is truly libertarian, however, then what is it doing allowing the government inside women's  uteruses? Perhaps the Court is just sitting out the debate, as Justice Kavanaugh said in declaring from the bench that the Constitution is neither "pro-life" nor "pro-choice." Yet the Constitution explicitly protects several things that should necessarily include protection for the right against forced pregnancy and birth.

Clarence Thomas: Be Careful What You Wish For

 by Sherry F. Colb

During the oral argument in the Mississippi abortion case, Justice Thomas at one point asked Julie Rikelman a seemingly irrelevant question. He alluded to a Supreme Court case, Ferguson v. City of Charleston, in which the state collaborated with obstetricians to invade the privacy of pregnant women. The state suspected the women of fetal endangerment through the use of illicit drugs. 

Justice Thomas was like a little boy in a candy store. He could see that his dream of allowing states and the federal government to force women to remain pregnant and give birth against their will was poised to come true. If viability would no longer serve as a boundary between the government and women's uteruses and vaginas, then what was to stop the government from punishing women for being addicts or for ingesting foods and drugs that could harm the raw material that the handmaids had been conscripted to turn into babies?

Hoping to get back to the subject of abortion, Rikelman nonetheless paused to tell Justice Thomas that threatening women with criminal punishment discourages them from seeking out prenatal care. I think she might have made the mistake of thinking that Justice Thomas was intervening to help ensure healthy births. Let us be clear: the goal is and always was to control and punish women, the consequences for the babies the women were forced to create in their bodies and then birth be damned.

Gullibility on the Left vs. Dishonesty on the Right, Part 2 of 2

by Neil H. Buchanan

To begin with a topic that is not directly related to this column, I should not fail to note the recent announcement that the debt ceiling issue has apparently been resolved until after the 2022 midterm elections. There might or might not be more to say about the specifics of that deal when the vote is finally taken, but this appears to be good news -- not only for the country and the world but for Professor Dorf and me, as we are now freed to write about other matters.

In any event, this column is the concluding half of a two-part essay that I began last Tuesday. There, I argued that there is a distinct problem on the left-leaning side of American media coverage, but it is different from the (much bigger) problem on the right. Whereas the Fox-iverse simply makes up lies about Democrats and anyone else who disagrees with them, the non-Trumpy media that can fairly be identified as "liberal" in the American sense -- mostly obviously MSNBC -- makes mistakes based on sloppiness or possibly laziness that end up undermining their own political druthers.

The example that I described in detail last Tuesday came from Joy Reid's MSNBC show, in which she lapsed into the all-too-tempting mode of calling Republicans the real deficit villains for passing their regressive 2017 tax law. That law was truly bad, but Reid's framing of the issue had the familiar effect of reinforcing the idea that deficits and debt are per se bad, an idea that can only hurt progressive causes.

 

Cheap, short-term rhetorical points are definitely not worth the cost of feeding public misconceptions about economic policy.  It would be worse, I suppose, if people like Reid knew what they were doing but honestly disagreed with me about the cost-benefit analysis, thinking that it is fine to feed anti-debt/deficit hysteria.  There is no evidence of that, however, as most Democratic pols and hangers-on, along with most left-ish media types, seem simply not to have bothered to think about or question the right-friendly premises of debt/deficit scaremongering.

That, however, is hardly the only example of the kind of unthinking error that I have in mind, where a person with a liberal/progressive agenda thinks, "Oh, here's something that makes conservatives look bad, so I'll use it.  What could go wrong?"  Here, I want to describe a much weirder example of that strategic error, which I again chalk up to sloppy/lazy journalism.  As we shall see, it is a jaw-dropper.

What the SB8 Ruling Didn't Resolve

 by Michael C. Dorf

Today SCOTUS decided the Texas SB8 case, rendering what looks superficially like a split decision. Justice Gorsuch, writing for a majority on this point, said that the abortion providers' lawsuit is "permissible against some of the named defendants but not others." Yet, as I'll explain very briefly here, that's highly misleading for two reasons.

First, the defendants against whom the majority allows the case to proceed are licensing officials who, eight Justices concluded, have some enforcement authority with respect to SB 8. Whether that is a correct reading of SB 8 is unclear. Justice Thomas, in dissent on this point, says that SB 8 could be read as disclaiming any such authority. But even accepting the majority's reading of SB 8 as correct, Justice Sotomayor is surely also correct that in future legislation in Texas and other states, lawmakers who want to ensure that they close the door to anticipatory relief in federal court will now know to disclaim any executive enforcement authority even more clearly.

Second, and more directly relevant to the ongoing SB 8 litigation, even if the district court accepts the invitation of Chief Justice Roberts, writing for himself and the three Democratic appointees, to "resolve this litigation and enter appropriate relief without delay," it is not clear that the district court can in fact order the kind of broad relief that would be necessary to reassure the providers that they can perform constitutionally protected abortions without risking being overruled by the Fifth Circuit and/or the five most conservative SCOTUS justices. Suppose the district court enjoins the licensing officials from taking whatever steps they have in their power to enforce SB 8. That injunction would likely not run against individual plaintiffs who might sue abortion providers and abortion abettors, and if the injunction did purport to run so broadly, one could well imagine the Fifth Circuit quickly narrowing it, with its narrowing decision remaining undisturbed because five justices would agree that an injunction can't run beyond the parties to the case.

Better Off Alive?

 by Sherry F. Colb

One of the pro-compelled-pregnancy-and-birth arguments that have been circulating in the wake of Dobbs v. Jackson Women's Health Organization responds to the claim that abortion can benefit children. The latter argument holds that sometimes a woman's existing children stand to gain from their mother's decision not to expand the family. Indeed, some argue, the new child that would exist if the state forced the woman to remain pregnant and to give birth against her will might suffer as a consequence both of being unwanted and as a result of whatever circumstances led the mother to want an abortion.

Lately (and at various points in the past), I have encountered a superficially appealing reply: the child who is now alive but would have been dead if their mother had had an abortion is obviously better off alive. Even if the other children in the family suffer some for having an additional sibling, the argument continues, the extent to which they suffer cannot compare to the loss that the new sibling would have suffered in being aborted. I want to suggest here that this claim is not as compelling as it might at first seem.

The claim seems persuasive because, as per the pro-compelled-pregnancy propaganda that I called out in this post indicated, we speak of zygotes, embryos, and fetuses as "the unborn" as though they were already little babies, and the woman's body was just providing shelter for them to get bigger. If this false picture were accurate, as we, perhaps subconsciously, have come to assume that it is, we would be asking whether a little baby is better off having to share and be somewhat unwanted or being choked to death or otherwise murdered. Of course, none of us would support going into a family with too many children and shooting the youngest of the children as a way of increasing the quality of life. Only an absolute utilitarian who focused on average utility would say that the right thing to do is to increase average utility by killing the low-utility baby

This is Why We Can't Have Nice Things: Blog Closed to Comments

 by Michael C. Dorf

From its inception, DoL has received occasional obnoxious comments. For a while, the comments section was even overwhelmed by spam from "spellcasters." Nonetheless, for nearly all of the now more than 15 years this blog has been in existence, we have received mostly thoughtful engaging comments. Often they disagreed with either the main point or a supporting point that I or one of my co-bloggers made in the original post, but they usually did so respectfully. Some combination of shaming, ignoring, and appealing to commenters' better angels sufficed to rein in those commenters who were sometimes less respectful.

Alas, of late we have been flooded by contributions from refractory pseudonymous and anonymous commenters mixing some combination of gross mischaracterization or misunderstanding of the main post, insult, and meandering long-windedness about tangents that bear little or no recognizable connection to the main post. Sometimes one finds the hint of a legitimate objection, criticism, or point somewhere amidst the vitriol, but it usually requires effort to locate. Most of these comments have come from what we might deem the Trumpified right (in both style and, when there is any, substance), although occasionally they come from the left or even from somewhere wholly outside any identifiable place on even a multidimensional political spectrum.

It is not worth my time or the time of my co-bloggers to take seriously whatever kernels of legitimate criticism or commentary emanate from the pseudonymous and anonymous commenters. Nor do I wish to continue to offer them a platform for what is little more than graffiti defacing my blog. I have no power to stop the now-erstwhile commenters from ranting to their friends on Facebook, Parler, or wherever else they exist in cyberspace, and even if I did, I wouldn't exercise it, because I believe in free speech. Henceforth, however, Dorf on Law will not have a comments section.

I reached this decision reluctantly, because we continue to receive thoughtful comments (both supportive and critical) from various other readers, but without active moderation of the sort I don't want to undertake, I cannot block individual trolls. The comments section has become what economists call a "market for lemons."

Going forward, I encourage those readers who want to engage respectfully to subscribe to the Facebook page for the blog, where you can post comments of any length, and/or to subscribe to my Twitter feed, as well as those of Profs Buchanan, Colb, Segall, Tokson, and other occasional bloggers. I post links to all blog posts on both the FB page and my own Twitter feed. Not that I need to say it, but I reserve the right to block particular abusers on these other platforms.

Abortion, Guns, and the Irrelevance of Text to Constitutional Law

By Eric Segall

During the Supreme Court's oral argument in Dobbs v. Jackson Women's Health Organization last week, there was relatively little mention of constitutional text. For over 50 years, conservative critics of Roe and Casey have argued that these cases were wrongly decided because the right to terminate a pregnancy is not in the Constitution. Yet, during the Dobbs argument, the conservative Justices seemed to just assume that Roe and Casey were incorrect and argued instead about whether viability is an appropriate or arbitrary line (Roberts), whether changes in adoption access undercut abortion jurisprudence (Barrett), and whether the states could criminalize reckless behavior by pregnant women (Thomas). But arguments about or referring to constitutional text were largely absent.

One explanation for the lack of substantial discussion about text by the Justices might be that they agree with Professor Ilya Somin who recently argued over at the Volokh Conspiracy that, although he takes no position on whether the right to choose should be constitutionally protected, the fact that this right is not explicitly mentioned in the Constitution does not support the overruling of Roe and Casey.

Gullibility on the Left vs. Dishonesty on the Right, Part 1 of 2

by Neil H. Buchanan

Buried within a (very necessary and welcome) recent response to Republicans' attempt to overstate consumer price increases and to blame them all on President Biden, one of MSNBC's hosts (Joy Reid) offered this: "Republicans are seizing on inflation and blaming Joe Biden for it personally, which is a fun twist after Republicans and Trump maxed out the national credit card on tax cuts for the super-rich and a partial wall that Mexico was supposed to pay for."

 

When I emailed that link to myself, I added this memo: "Another dippy lefty media type just grabbing onto something random that sounds useful in the moment."  I will explore this further below, but my overall point in this column is a larger one.  Attacking the media for supposedly having a leftist bias is a favorite pastime on the American right, as it has been for decades.  Complaining about media sloppiness and laziness, as well calling them out for being easy marks for Republicans who want to "work the refs," is where people like me on the left come in.  Even though both left and right are complaining about the same group of people, there is nothing symmetric about the situation.

 

Here, however, the issue is not the bad decisions made by mainstream media mavens who insist that they are (or try to be) scrupulously unbiased.  My focus today is on the utter silliness that can sometimes come from the left side of the TV/print and pundit universe.  And the problem is not only in opinion pieces, because we often see the mindless acceptance of whatever seems useful at the moment even in pieces that purport to be pure reporting from the left.

This is bad for the country and the world, because people who genuinely want to do good in opposing the Trump/Republican neo-fascist (or at least fascist-y) movement should not make unforced errors.  Even when the errors are sins of gullibility -- listening to a crank economist or a charlatan populist, because the reporters are attracted to the anti-Trump bottom line -- it can make matters worse.

 

To put it simply -- so simply as to expose the trivially obvious error being made -- my point is this: The enemy of thine enemy is not necessarily thy friend.  The details matter.

Abortion and Regret

by Sherry F. Colb

Since the topic of abortion is all over the news, I want to take this opportunity to address one of the many lies that people who wish to force women to carry unwanted pregnancies to term and to give birth tell. The lie is the idea that women who have abortions suffer all manner of psychiatric fallout, including abortion regret syndrome. Even Justice Kennedy, who was actually capable of compromise, said the following in Gonzales v. Carhart: "While we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained."

The Over/Under on the Right's Federalism Flip on Abortion

by Neil H. Buchanan

 

Having returned two days ago from spending Fall semester in the UK, I am still jet-lagged and not able to write a normal column for Dorf on Law today.  As it turns out, however, this was a good week for me to be disengaged.  After all, the big story of the week was the Supreme Court's oral argument in the anti-Roe case, and Professors Colb, Dorf, and Segall have already ably and extensively commented on that debacle.

 

Even if I had been able to fully engage this week, I suspect that I would not have had much to add to their analyses.  In this very short entry, therefore, I want to return to an abortion-related question that I posed in a column three months ago.  I wrote:

Republicans' commitment to devolved federalist power -- so-called states' rights -- has never been anything but opportunistic on any policy question.  Even within that hailstorm of hypocrisy, however, their commitment to "letting the states decide" abortion's legality has always been a crock.

...

How many nano-seconds will it take Cruz to decide that abortion is a federal issue, after Republicans are able to pass a federal prohibition that their packed courts will allow to stand? 

...

 

Cruz and others in his camp will simply do what they did when asked about the hypocrisy of ramming through Amy Coney Barrett's confirmation.  Cruz was particularly blunt, telling interviewers that people could complain all they want, but because Republicans had the votes to do what they wanted to do (and to ignore what they had said about Merrick Garland's nomination), nothing could stop them.  And so it will be when Republicans want to outlaw abortion nationwide.  I honestly would not be surprised if Cruz has already written his speech favoring central government control of women's bodies.

The oral argument included pious let-the-states-decide comments from Brett Kavanaugh.  My guess is that the majority might even include some such language in their opinion neutralizing Roe.  Even so, that will all be forgotten as soon as it is convenient for the one-party autocrats to flip.

 

I therefore want to use this post to open the comments to guesses as to the answer to the question: How long will it take before Republicans try to pass a nationwide ban on abortion?  My over/under is two days from the beginning of the next congressional term in which they are in the majority.

 

Bonus question: What fig leaf will Kavanaugh et al. use to claim that their sudden abhorrence for states' rights is not evidence of their being partisan hacks?

What's In A Name? How Proponents of Compulsory Pregnancy Have Distorted Our Thinking

 by Sherry F. Colb

For a long time, I have used the phrase pro-life to refer to people who believe that the government ought to be able to force women to remain pregnant and give birth against their will. My reason for this usage was to show respect for people who in good faith disagreed with me on a difficult and painful issue. I now believe that I made a mistake. The phrase "pro-life" is now and always has been little more than propaganda that distorts the nature of the abortion debate. 

Another bit of propaganda, more subtle than "pro-life," is "unborn child" or "the unborn." Language matters, and these two phrases together contribute to an overall picture that bears almost no relation to reality. Since the oral argument on Wednesday betrayed little of the reticence that once characterized the folks who want to force women to remain pregnant against their will, I will henceforth speak in accurate terms about the stakes in the abortion contest. If accuracy results in disrespect, then I will regard the double effect as amply justified by the need to illuminate an issue that has been shrouded in doublespeak.

The Dobbs Oral Argument: Lowlights and More Lowlights

 By Eric Segall

If you are reading this blog, you know that the most important abortion case in 30 years was argued this morning at the Supreme Court. As expected, precedent was a major issue (especially for the liberals) while the location of where the right to terminate a pregnancy comes from was a major topic for the conservatives. Below are lowlights from the argument, which was much more theater than legal or even policy discussion. At the bottom of the post, I offer a few predictions about what is to come. 

The Problems With the Chief's Middle Ground

 by Michael C. Dorf

During the just-concluded oral argument in the Mississippi abortion case, the Chief Justice seemed to be searching for a middle ground. I'll write up a brief summary of the opinion I think he'd like to write, then point to three very serious problems with it.

Chief Justice Roberts delivered the opinion of the Court: 

In Roe the Court said in what was dicta that the state may not forbid abortion before fetal viability. Casey, which also did not directly implicate viability, purported to reaffirm that line, even as it discarded the trimester scheme that had been central to Roe. Viability is not, however, central to Roe or a sensible line. A woman's interest in being free from an unwanted pregnancy exists before and after viability. So does a fetus's interest in life. We nonetheless recognize the reliance interests of society and the interest in gender equality that undergirds the abortion right. That right is a right to choose. Accordingly, in place of the arbitrary viability line, we hold that a state may forbid abortion only after a woman has had a reasonable time to decide whether to terminate a pregnancy. We need not decide when that is. Certainly a few days after conception would not be enough time, given the logistics of scheduling and the fact that many women will not know they are pregnant for weeks. However, 15 weeks is more than enough time to obtain an abortion in a typical case. If there are later-developing health grounds for terminating a pregnancy, that could be the basis for an as-applied challenge to a state law that does not allow exceptions for such circumstances. Under this standard, we reverse the appeals court.

Now to the problems with this approach. I'll put aside my view that there is no (non-religious) state interest in forbidding abortion prior to fetal sentience.

The Undue Burden Test Really Is Not Relevant In Dobbs

 by Michael C. Dorf

The oral argument in Dobbs commences in a few hours. Prof Segall and/or I will be back either later today or first thing tomorrow with some instant analysis. Meanwhile, by way of further preview, I want to respond to some scattered pushback against one of the claims I made in my blog post on Monday. There I argued (among other things) that the amicus brief of Senators Hawley, Cruz, and Lee is peculiar in that it is almost entirely directed against the undue burden test adopted by SCOTUS in Planned Parenthood v. Casey, even though the flaw that the Fifth Circuit found in Mississippi's Gestational Age Act is that by outright forbidding most abortions before 15 weeks, the law violates the prohibition on pre-viability bans, and that prohibition was not introduced by the Casey Court as part of the undue burden test; rather, it is the part of Roe v. Wade that the Casey Court reaffirmed. Thus, I said in Monday's blog post that the focus on the undue burden test was essentially a non sequitur.

To be honest, when I wrote Monday's blog post, it didn't even occur to me that anyone might plausibly think that the undue burden test was implicated by the Dobbs case. That's partly because when the Supreme Court granted certiorari, it rejected the question Mississippi tried to pose implicating undue burden. The original petition posed three questions. The Court granted on question 1 -- "Whether all pre-viability prohibitions on elective abortions are unconstitutional" -- but rejected question 2 (about undue burdens) and question 3 (about standing). Even after I noted as much, however, some of my readers insisted that the undue burden test could be relevant.

I want to be clear that I agree with these readers that it is possible that one or more Justices could write or join an opinion, concurrence, or dissent that says something about the undue burden test or even claims to resolve the case under it. What I'm saying is that doing so would not make any sense, unless those who do so frankly acknowledge that they are changing the law.

For the nearly three decades that Casey has been on the books, it has been more or less universally understood to have endorsed the following rules: (1) pre-viability, the state may not forbid abortion; (2) post-viability, the state may forbid abortion, so long as it allows life and health exceptions; (3) at any point in pregnancy, the state may impose regulations that do not amount to prohibitions, but if those regulations govern pre-viability abortions, they may not unduly burden the abortion right. (1) and (2) reaffirmed and did not change what the Casey Court called the essential holding of Roe. (3) is the undue burden test that Casey introduced. Because the Mississippi law runs afoul of (1), it implicates Roe, not Casey's undue burden test.