A Preliminary and Barely Data-Based Observation About SCOTUS Polarization

by Michael C. Dorf

Yesterday the Supreme Court handed down two opinions that divided the Court on ideological grounds (although Justice Kagan joined the Republican appointees in one of them). The cases involved immigration--which is often ideologically divisive--and the Freedom of Information Act--which sometimes is. My interest here is not so much in the merits of either case as it is on the evidence for increased polarization that they supply.

Justice Breyer authored the principal dissent in each of yesterday's cases. That's striking. Justice Breyer is not a frequent dissent-writer. The notion that he would write two dissents in one day in two relatively-low-temperature cases suggests something is up. That something, I would suggest, is increased polarization.

Consider (based on data available here) that in the Supreme Court terms from Justice Kagan's addition through Justice Kennedy's retirement, Justice Breyer dissented in, respectively 5, 5, 4, 4, and 3, or an average of just over four cases per Term. By that standard, two in a single day early in the Term is quite a lot. But it's not such an outlier when gauged against the more recent numbers. Since Justice Kennedy's retirement, we see dissents in 6, 7, 10, and 7 cases per Term, for an average of a little over seven cases per Term.

Now in one obvious sense, this is not evidence of increased polarization. Rather, as the Court moved right, Justice Breyer moved from the Court's center-left to its left. Without Justice Kennedy occasionally joining to form a liberal majority in a divisive case, Justice Breyer found himself more frequently in dissent and thus more frequently writing dissents. The trend should accelerate with Justice Barrett's having filled the vacancy created by Justice Ginsburg's death.

I acknowledge that mere median-shifting accounts for much or perhaps all of the increasing frequency of Breyer dissents, but I want to suggest another possibility: Perhaps he has given up on a certain kind of centrism.

Cuomo, Tanden, and Other Embarrassing Allies

by Neil H. Buchanan 

 

The political wheel of fortune has again put Democrats in a position where they have had to decide whether to stand by a few of their compatriots who are difficult to defend, or instead to jettison excess baggage and move on.  After weeks of backing his nomination of Neera Tanden to be his budget director, President Biden ultimately decided that she was not worth the fight.  Meanwhile, whether New York Governor Andrew Cuomo will survive his emerging scandals is currently impossible to predict.

 

Every political scandal is different, of course, yet there is a sameness to the genre.  Even so, there continues to be an enormous difference between the way that Democrats handle their embarrassing colleagues and the way that Republicans bulldoze through their much worse situations.  Are there any lessons here?

Institutional Racism, Affirmative Action, and Judicial Hubris: Part I

 By Eric Segall

The pernicious and negative consequences of centuries of slavery, segregation, and formalized legal racial discrimination are still all around us. As I detailed here, institutional racism pervades our schools, police forces, governmental institutions, neighborhoods, and even our private markets. In my lifetime, just a few blocks from the law school where I teach, a hotel went to the Supreme Court arguing for the right to discriminate against people of color despite a federal statute prohibiting the same. Today, GOP legislatures in well over half the states are trying to deter people of color from voting. Just yesterday, the Court heard oral arguments in such a case. 

Against this backdrop of racism, educational institutions across the country now take account of race when selecting their incoming classes in order to achieve greater educational diversity that benefits people of all races. At the same time, a group called Students for Fair Admissions (SFAA) has been filing lawsuits attempting to prohibit public and private universities from taking race into account at all in their admissions decisions. These suits have challenged the use of affirmative action under the 14th Amendment's Equal Protection Clause as well as a federal statute (Title VI) that bars institutions receiving federal funds (virtually all colleges and universities) from  discriminating on the basis of race.

The Supreme Court will soon have to decide whether it will hear a lawsuit brought by SFAA against Harvard University seeking to end all use of race in university admissions. SFAA lost in the courts below, and last week filed a petition for certiorari seeking to have the Supreme Court reverse those decisions. This case is different from any the Court has heard before because SFAA is alleging racial discrimination against Asians, a traditionally disadvantaged group. But make no mistake, the effects of a ruling that racial considerations are off limits to admissions committees would seriously hurt Blacks and Hispanics and set back the efforts being made by universities nationwide to redress centuries of discrimination against all people of color. SFAA is surely thinking it will find a receptive audience among the six conservative Justices.

I’ll Defend California’s Politics Over Texas’s Any Day

by Neil H. Buchanan

If nothing else, New York Governor Andrew Cuomo's downward spiral should remind everyone that state-level politics can be messy.  As Virginians discovered a few years ago, when the governor, lieutenant governor, and attorney general simultaneously faced assorted scandals, people who look good one day can look bad the next (and sometimes bounce back again later, although I would not bet on that outcome for Cuomo).

Beyond personal scandals, the deeper political structures and cultures in the various states present a different set of questions.  It is not as though states cannot change.  For decades, Maryland was accurately reputed to have an insanely corrupt state government, most famously including former Governor Spiro Agnew's crime-a-palooza that ultimately ended his stint as Richard Nixon's first Vice President.  That reputation no longer fits Maryland today, although there are surely still many problems there.  Illinois has witnessed extensive political problems as well, but there is no guarantee at this point that reforms will take hold there to move it in the right direction.

The two most populous states in the nation present us with a unique comparison.  California has for the past few years solidified its position as the bluest of blue states, whereas Texas -- which has been ruled forever by a deeply conservative political class (first under Southern Democrats, then under converts to the other side like former Senator Phil Gramm, and now under the Trumpiest of Republicans) -- has been the ever-elusive "just about to turn purple and then blue" fantasy of those of us who view demographics as destiny.  Even if Texas ultimately flips, for now its government at all levels is still firmly in the grip of some of the most reactionary conservatives in the United States.

As things currently stand, then, California is run by Democrats and Texas is run by Republicans.  Given that both states have unsolved problems, should we conclude that neither party is capable of solving problems?  No, not at all.  In California, Democrats are trying to solve problems, whereas in Texas, Republicans are denying that problems even exist while doubling down on their own disastrous political agenda.

Federal Judge's Invalidation of the Eviction Moratorium Threatens the Fair Housing Act and More

 by Michael C. Dorf

When I read the headline that a federal district judge had struck down the CDC eviction moratorium, I assumed that the ruling said the moratorium went beyond the authority Congress had delegated to the CDC. I was mistaken. According to the actual ruling of Judge J. Campbell Barker in Terkel v. CDC, even Congress itself lacks the power under the Commerce Clause to enact the moratorium that the CDC adopted by rule.

That decision is not just wrong but potentially dangerously so. As I explain below, its logic threatens federal civil rights legislation. I conclude this essay with a proposal for Congress to circumvent the immediate danger from the moratorium's invalidation. Unfortunately, I do not have a solution to the broader threat to congressional power. 

Rawls at 100: Three Critiques

 by Michael C. Dorf

In an important essay earlier this week, Prof Lawrence Solum marked the occasion of the one hundredth anniversary of the birth of John Rawls and the impending fiftieth anniversary of Rawls's landmark book A Theory of Justice. Prof Solum focuses on the ongoing influence of Rawls, both through his students and otherwise. I recommend it to readers, who might also be interested in an essay I wrote in memory of Rawls on the occasion of his death.

Both Prof Solum and I include some personal recollections. My essay noted that as a student I was lucky enough to study with Rawls--from whom I took a large lecture class on moral and political philosophy, with a heavy focus on the usual suspects: Locke, Hume, Kant, Bentham, Mill, Marx, and then, as I recall, skipping over nearly a century to get to Rawls himself. Rawls was very much interested in counter-arguments, but he did not specifically consider what was then (in the early-to-mid-1980s) widely regarded as the leading challenge to his approach--Robert Nozick's libertarianism as set forth in Anarchy, State, and Utopia. Nozick was a substantially less rigid and more subtle libertarian than the likes of Ayn Rand, and precisely for that reason, any fair-minded attempt to respond to libertarian objections to Rawls's defense of the liberal welfare state should target Nozick's watchman state.

Rawls and those who followed in his footsteps offered responses to the core argument of Anarchy, State, and Utopia, but it's important to understand that even if one thinks those arguments were not successful, it hardly matters for defeating what passes for libertarianism in public debate. On the ground, the sorts of actors who purport to be inspired by libertarian thought either really are relying on Ayn Rand (think of the now-moderate-seeming-by-comparison-to-Trumpers former House Speaker Paul Ryan) or simply using libertarianism as a veneer for crony capitalism (think of Republican elected officials in Texas). Meanwhile, although a fair number of principled libertarians stood against Trump and Trumpism, it is clear that they are no longer a dominant force on the right. The libertarian critique of Rawls remains theoretically significant but not especially significant as a practical matter.

Let us turn then to two other critiques. Each critique can be understood as objecting to the seeming bloodlessness of A Theory of Justice--its claiming to speak from the viewpoint of nowhere, as it were.

Trump's Crimes, and What to Do About Them

by Neil H. Buchanan

 

Donald Trump left office without pardoning himself, surprising many people -- certainly including me.  Or did he actually pardon himself without telling anyone about it (yet)?  Trump's former lawyer Michael Cohen suggested as much shortly after President Biden's inauguration.  Whatever else one thinks about Cohen, he certainly was spot-on when he testified two years ago that Trump would not leave office peacefully.

 

Being right about one thing, however, does not make Cohen a seer.  Did Trump issue a secret "pocket pardon"?  Maybe, but if he did try to pardon himself -- and somehow overcame all of his brazen reality-show instincts by not bragging about it and daring people to stand up to him -- we will not learn about it until either Trump needs an adrenaline rush of news coverage (perhaps at his upcoming CPAC speech?) or he actually is in danger of being indicted for federal crimes and pulls the self-pardon out of his pocket.

Will any federal prosecutor actually try to prosecute Trump?  Had Trump announced a self-pardon on January 19, that would have made federal prosecution both less and more likely.  It would be less likely because any prosecutor would have to take into account the extra hassle and uncertainties of litigating the pardon question as a threshold matter.  It would be more likely, however, because it would give the Justice Department in a post-Trump world a reason to say: "No one can do this."  But as it stands today, the balancing question is between holding an unrepentant serial offender to account and avoiding an inevitably controversial prosecution at a politically volatile time.

That will not be an easy decision, but in the end, federal prosecutors should pursue every case against Trump and his associates that they can win on the merits.  Why is that so clearly the right approach?

Texas Energy Policy and the Incoherence of the Efficiency Concept

by Neil H. Buchanan

At this point, it appears that most homes and businesses in Texas have at long last had their electric power restored.  If any are still without service, they are in the second week of living in 18th Century conditions, which millions upon millions of Texans experienced for many days last week.  And even now, houses with electric power restored do not have running water, with plumbers working day and night to work through waiting lists that run into the thousands (per plumber).

In a column last week, I noted how quickly life becomes truly elemental when the foundations of modern living disappear.  Being thrust into a feral life is jarring, and humans understandably have psychological safety mechanisms that allow us to forget very quickly how awful things felt while we were waiting for normal life to return.  And as I pointed out, even when a power outage is relatively short, the temptation to say that it was "only 10 hours" or "only two days" misses the fact that we cannot know during the events themselves when they will end.  It is similar to a job search that stretches on for months, and after a job offer comes in, downplaying the crippling uncertainty and depression that the person suffered.

We should, therefore, fight the temptation to minimize a crisis that lasted "only" a week or so (but which, again, is still not actually over for the people without running water).  The people in Texas's government who are to blame will do everything possible to say that the problem is solved and that we should all move on -- just as they have been saying that Trump's "only four hours and a couple of hundred people" insurrection is nothing to dwell on.

As a policy matter, however, the Texas disaster is a perfect moment to reflect on the concepts of regulation, deregulation, the so-called free market, and that ever-elusive concept called Economic Efficiency (cue the triumphant music).  I have argued for years that efficiency is a meaningless concept (see, for example, the article that Professor Dorf and I co-authored that will be published soon in Cornell Law Review), and last week's collapse in the Lone Star State is a perfect illustration of the emptiness of free-market bromides.

Yesterday Appeared to be a Bad Day for Trump and Trumpism at the Supreme Court: SCOTUS Kremlinology Part 3

by Michael C. Dorf

The big news out of the Supreme Court yesterday was the denial of the stay sought by Donald Trump in the NYC grand jury investigation into his finances and related matters. The ruling in its entirety stated: "The application for a stay presented to Justice Breyer and referred to the Court is denied." No dissents or reasons were recorded.

That's not especially unusual. The Supreme Court routinely takes summary actions without explanation. And despite understandable calls for greater transparency on the Court's so-called shadow docket, there is almost certainly some irreducible minimum of work that the Court--like any reasonably complex institution--can and should be permitted to do without giving reasons.

Indeed, we might worry about the opposite problem: In the four cases involving clashes between state public health measures and religious freedom claims since last spring, various Justices arguably said too much, and thereby changed the underlying law governing religious exceptions without full briefing and oral argument.

In any event, watching the Supreme Court is, as I have noted before (here and here) something of an exercise in attempted mind-reading or Kremlinology. For example, an article last week in USA Today quoted three scholars (including me) hypothesizing that the Court is taking a brief breather from hot-button issues in order for the new conservative supermajority to coalesce. The article is sensible, but as I wrote its author after it appeared:

all of the scholars you interviewed had the same basic reaction: seems like they’re going slowly for now/probably won’t last/we’re really just guessing at what’s going on. I might add . . . that there might not even be a there there. That is, we’re acting as though the Court has a plan and we’re trying to infer it as kremlinologists. But the Court is a "they," not an "it," so its/their actions are the vector sum of complex individual decisions that could be at cross purposes with each other.

With that gigantic caveat--that so much of what I say about the Supreme Court is really just guesswork--I'll venture a brief reaction to the financial records decision and a few observations about the Court's denial of cert in the cases from Pennsylvania challenging that state's supreme court's decisions regarding the 2020 presidential election.

Why Harvard Can't Just Give Cornel West Tenure - And Why That Shouldn't Matter

 by Diane Klein

Noted public intellectual, best-selling author, and co-chair of Bernie Sanders' presidential campaign Cornel West is threatening to leave Harvard, for a second time.  He has stated that "the administration disrespected him by denying his request to be considered for tenure."  A statement like this was crafted carefully, and it has to be read carefully.  First of all, West has not been denied tenure.  It would appear that he was turned down after requesting "to be considered for tenure."  Why would he have to make such a request? Presumably, because he holds a position that is not eligible for tenure.  Is turning him down a sign of "disrespect," as he claims?  Or did West voluntarily accept a position that was ineligible for tenure - only to complain a few years later that Harvard refused to consider him for a status that was never part of the job? And why does it make such a difference?

"Playing Politics" While Texans Freeze and Die: Nonsensical Bothsidesism Again

by Neil H. Buchanan

 

The crisis in Texas this week is causing misery on a vast scale.  People who rely on electrical devices to keep themselves alive are not able to recharge batteries.  Hospitals have been without power or water for days.  People are being forced to live in group settings with strangers during a pandemic -- where such options are even available -- simply in order to survive.  Some are sitting in sub-freezing homes, trying not to die of hypothermia.  Not all are succeeding.

My worst personal experiences with power outages have been two 3-day disruptions during winter storms, but in each case the weather dramatically improved while I was without power.  Also, because the outages were spotty and not region-wide, the only question was whether I would need to drive two towns over to get a hot meal from a restaurant.  Nonetheless, it was amazing how quickly life could change, where even sitting in a house that is 50 degrees Fahrenheit can make one feel that survival is at stake -- especially because we could only know after the fact that the outage was "only three days."  While it is happening, with no information (and in some cases, no way even to try to obtain information) about when it might end, it makes life seem very, very harsh and primitive.

 

Even people who might think that we as a society have become too spoiled and consumerist would have to concede that suddenly being deprived of the things that we take for granted is a recipe for disaster.  Yes, humans survived (with much shorter life expectancies) for centuries without central heating and running water, and even now, people go camping.  Still, suddenly putting people into survival mode, including people who are in serious danger of not surviving, should be unthinkable.

 

That means that we should rightly be angry that this crisis was the result of political blindness by the Republican Party.  But when is it okay to "be political" when responding to a crisis?  It turns out that making political arguments during a crisis can be perfectly appropriate.  What is inappropriate, however, is for news reporters to revert to meaningless talking points and both-sides-do-it accusations.  With the return to "normal" politics in the Biden era, we unfortunately see journalists lapsing back into their lazy attempts to sound objective.  This is dangerous.

 

Does Texas Order Keeping Natural Gas In State Violate the Dormant Commerce Clause?

 by Michael C. Dorf

The ongoing crisis in Texas and other states that have experienced atypically wintry weather is first and foremost a humanitarian challenge for the people affected. I feel nothing but concern for those suffering from cold, power outages, unsafe drinking water, and the associated ills. I urge readers who share that concern to donate to one or more relief organizations providing direct aid. I also hope that no one will mistake the following analysis of legal issues raised by one aspect of the response to the crisis for callousness or insensitivity.

As was widely reported, yesterday Texas Governor Greg Abbott ordered that natural gas slated for delivery out of state be offered first to in-state power operators. In a moment I'll turn to the question that titles today's essay, but I want to begin with some procedural complexities. The story just linked refers to "a copy of Abbott’s order seen by Bloomberg" News. Likewise, a press release issued by Governor Abbott states that he "has ordered natural gas producers not to export product out of state until February 21st and instead sell it to providers within Texas." However, neither the Bloomberg story, the press release, nor any source I could find links to an actual order of the Governor. Instead, there are multiple references to a letter that Abbott sent to the Texas Railroad Commission--which, despite its name, has long had authority to regulate the energy sector in Texas. That letter apparently states:

I hereby mandate that all sourced natural gas be made available for sale to local power generation opportunities before leaving the state of Texas, effective through February 21, 2021. . . . I ask that you immediately take all reasonable and necessary steps to ensure that this mandate is carried out.

It is not clear whether there is a separate order that Governor Abbott issued or whether the letter itself is the order (as its use of "hereby mandate" suggests). In any event, nothing in my ensuing analysis turns on whether there is a stand-alone order as well as the letter or only the letter. The two key points I wish to raise are (1) it is unclear whether the Governor of Texas has the authority under state law to mandate the diversion of natural gas or whether that authority, if it exists anywhere in Texas, is lodged with the Railroad Commission; and (2) assuming that the Governor has the authority under state law or that if he doesn't, the Railroad Commission adopts the same order, the substance of the order could violate the dormant Commerce Clause of the U.S. Constitution. Below I'll explain why the uncertainty of issue (1) could actually aid Texas in evading review of issue (2).

The Constitution is a Disaster, But Designing a Sound Impeachment Rule for a Polarized Country Would be a Challenge Anyway

 by Michael C. Dorf

After an assault on the democratic order, it is understandable to glorify the legal basis for that order, especially in the United States, which tends to Constitution-worship even in the best of times. Yet a moment's reflection reveals that the despicable attack on democracy by Donald J. Trump and those in the thrall of his personality cult was not merely an attack against the Constitution; it was facilitated by the Constitution's flaws.

Here are some features of our Constitution that combined to enable Trump's assault: (1) The Electoral College--our byzantine system for choosing a chief executive whose current powers are better suited to one elected by plebiscite---not only distorts campaigns to focus on a handful of swing states at the expense of voters in all the others but periodically turns what should be easy-to-call election-night outcomes into nail-biters that then make contests over a relatively small number of votes consequential. Elections that are not close thus fall within what we might call the "margin of propaganda." (2) The Electoral College also enables the loser of the majority vote to win the presidency "legitimately." (3) The decentralized nature of our election system (enshrined by Article II) creates multiple pressure points for threats of primary challenges or physical violence against elected officials if they do not "find" enough votes for the would-be autocrat. (4) The dispute-resolution mechanism set forth in Article II for a contested election disproportionately favors rural voters who are vastly over-represented in the Senate and in House delegations when counted (as they are under that mechanism) on a one-vote-per-state-delegation basis. (5) The super-majority requirement for a successful impeachment combines with party politics to prevent accountability for even the most outrageous conduct, so long as the demagogue retains support of about 30% of the population, which suffices to win primary elections. (6) The super-majority and state-centered nature of the Article V amendment procedure make it nearly impossible to change any of the foregoing.

To recognize that the Constitution is profoundly flawed is not to attribute all the blame to its framers, deeply flawed though they were in their desire to protect or acquiesce in the protection of the institution of human bondage. For despite the framers' moral blindness, they designed a system that has many admirable features. The core issues that continue to bedevil us might be thought to be problems of under-correction: (1) The election of 1800 revealed that the Constitution the framers designed for a nation without political parties fit very awkwardly with a nation with such parties, but the Twelfth Amendment corrected only one small aspect of that mismatch. And (2) In the wake of the Civil War, the Reconstruction Amendments left far too much of the ancien regime in place and, in one crucial respect (repeal of the 3/5 clause) actually enhanced the long-term political power of the most racist elements of the country (by increasing the representation in the House of the states of the former Confederacy).

If I had a magic wand, I would wave it to replace our barely-amended 18th-century slavery-preserving constitution with something much better suited to a multicultural 21st-century polity. Of course, neither I nor anyone else has such a wand. In future essays, I hope to provide some suggestions for measures that can achieve some tangible progress despite our profoundly flawed legal order. For today I want to turn my attention now to a genuinely difficult question of constitutional design that we would face even if we could amend our Constitution: what should the impeachment mechanism look like?

Technicalities and Constitutional Incompleteness: Banning Insurrectionists from Holding Office

by Neil H. Buchanan

What is a technicality?  In the echo chambers of political punditry, certain words and phrases gain favor, allowing writers not to think deeply about issues even as they sound familiar notes to project seriousness.  Lately, among those who are disappointed that the Senate did not reach the two-thirds threshold to formally convict Donald Trump in the impeachment trial, the unfortunate move is to describe Republicans' dodging of the issue as hiding behind a technicality.

 

Aaron Blake, a Washington Post reporter, wrote that "Trump was acquitted at his second impeachment trial largely — if not completely — on a technicality: the argument that the trial itself was unconstitutional."  Similarly, Michelle Goldberg, the progressive New York Times columnist, yesterday disparaged Minority Leader Mitch McConnell for relying on the "manufactured technicality ... that a former president is 'constitutionally not eligible for conviction.'"

 

Blake's larger point is about Republicans' hypocrisy, and Goldberg does say that this was a manufactured technicality, but there is still a problem: The Republican senators who said that a no-longer-sitting president cannot be impeached, tried, or convicted were simply wrong.  Hypocrites or no, their argument that the Constitution required them to vote to acquit on jurisdictional grounds is baseless nonsense.  They did not manufacture a technicality.  They failed to manufacture a technicality, and they then went rogue.

This matters, both for the immediate discussion of Trump's second impeachment and for the question of whether Democrats can use a Fourteenth Amendment provision to the same effect that a Senate conviction would have had: disqualifying Trump from running for president in the future.  That gambit might or might not work, but understanding what is happening requires us to know what is a technicality and what is simply bull crap.

Say Anything II: Top Ten Ethical Violations by Trump's Lawyers in the Second Impeachment (and One That Wasn't)

by Diane Klein

Have you ever heard of Sidney Carlton?  I hadn't, until very recently.  I had of course heard of Emmett Till, the 14 year old whose murder in 1955 by vicious White supremacists seared the nation's conscience and helped impel the Civil Rights Movement.  I had also heard of Roy Bryant and J.W. Milam, the men who killed him, brutally and unapologetically, then brazenly pleaded "not guilty" at trial, celebrated their acquittal - and then openly admitted their crime in Look magazine a year later, protected by double jeopardy.  But I hadn't heard of Sidney Carlton, one of their lawyers, the man who closed his argument by telling the all-White, all-male jury, "Your ancestors will turn over in their grave, and I'm sure every last Anglo-Saxon one of you has the courage to free these men."  Sure enough, they did, just over an hour later.

 [Left: Sidney Carlton confers with Milam and Bryan, 1955; right: the Emmett Till jury, 1955]

Sidney Carlton won an acquittal for men he surely knew were guilty of a horrible crime.  He did so by appealing, successfully and openly, to the most loathsome prejudices in the American character.  Under the circumstances, it didn't require brilliant lawyering.  As one of the team of Bryant and Milam's lawyers said, "After the jury was chosen, any first-year law student could have won the case."  Still, Carlton and his colleagues said what they said, and did what they did. They were the coachmen driving one of the most notorious miscarriages of justice in twentieth-century America.

Trump's impeachment defense team are little better, and their role in what we can only hope is the beginning of the end of Trump's outsized influence on American politics and American life ought at least to be an object lesson in the training of American lawyers.  Much of what they said infuriated and inflamed those who believe Trump should have been convicted for his role in the January 6 insurrection. Much of it struck many listeners as outrageously wrong and misleading, when not irrelevant or flat-out false.  Some may have found themselves wondering, Can lawyers do that?  Can they say anything at all, to try to get their client acquitted?  And does it make a difference if the client is being impeached, rather than charged with a crime?

Another Big Lie: Incitement is in Fact All About Context

 By Eric Segall

The defense team defending Donald Trump said on several occasions Friday and Saturday that incitement is "only about the words of the speech," and that events that happened before and after that speech are irrelevant. Although the requirements for incitement for criminal conviction do not technically apply to impeachments, it is beyond doubt that even in criminal trials context is often the deciding factor in incitement cases. Trump's lawyers are just flat out wrong on this, but it is easy to see why they are making this demonstrably false argument. They don't want to admit the months of lying, inciting, and taunting by Trump, all of which led to the tragic attack on the Capitol. 

Are the Consequences of Trump's Impending Acquittal by Senate Republicans Definitely All Bad?

by Neil H. Buchanan

The House's impeachment managers rested their case yesterday, powerfully concluding a necessary national immersion into the events that led up to the January 6 insurrection and the horrors of that day.  If nothing else, the Democrats successfully reversed the shocking national amnesia that had set in over the last five weeks.

 

Republicans have, all too predictably, continued their contradictory and bad faith responses -- "What kind of trial has no witnesses?" "If the Democrats dare to call witnesses, we'll freak out!" "They're going through this too quickly!" "They're going through this too slowly!" -- and the outcome is so little in doubt that Trump's lawyers are going to essentially submit a Post-It note for their defense today and then rest.

Although I have argued passionately that there is only one right outcome to this trial on its own terms, I have also expressed doubts about whether the outcome matters going forward.  It is a strange situation indeed, with Democrats truly having no choice but to impeach on these facts and then to proceed to trial and hope for a conviction, even knowing that this could all end up helping Trump and the Republicans in the political realm.  "Could," however, does not mean "will," and it remains possible that Democrats will gain politically from doing the right thing.

But what if we knew with certainty that the Democrats' seemingly required response to the insurrection would lead to Republicans taking back power in 2022 and never giving it up again?  Obviously, the strategy would have to change, and impeachment -- no matter how justified -- would have to be abandoned.  Because it is just as easy to picture a future in which Democrats gain by having impeached but lost in the Senate as it is to picture the opposite, however, the only thing to do now is to defend the rule of law and hope (and fight peacefully) for a better future.

Here, I want to explore the possible political implications of the trial from a slightly different angle.  As I wrote in my Dorf on Law column yesterday, "I am less convinced than ever that the Senate's vote in this trial matters, as I will explain in greater detail in my next Dorf on Law column tomorrow."  In particular, I want to disagree rather strenuously with two arguments that the Democrats' impeachment managers laid out as a warning to any wavering Republicans.

Trump's Lawyers' Theory Could Give a President More than One Way to Game Impeachment

by Neil H. Buchanan

The ongoing Senate trial of Donald Trump has been riveting, to say the least.  If ever there were any doubts about the value of following the constitutional process, even when the outcome is a foregone conclusion, those doubts have been definitively extinguished.  The public now has a much better, more complete understanding of what led up to the January 6 insurrection, as well as the horrors of that day itself -- which, we now are seeing, could have been much, much worse.

On Tuesday of this week, I published a column on Verdict under the somewhat misleading title, "Would Senate Republicans Abandon Their Baseless Arguments if There Were a Secret Ballot?"  I describe that title as misleading because the vast majority of my analysis was not devoted to the secret ballot question in any direct sense.  Instead, I used comments by retiring Ohio Senator Rob Portman to expand on my recent critiques of Republicans' text-based claim that the Senate trial is unconstitutional.

 

I then used Portman as an illustrative counter-example to the supposition -- one widely believed by well informed people -- that Republicans would overwhelmingly vote to convict Trump if only they could do so without anyone finding out how they voted.  Portman, who will be 67 when he leaves office and will never face Trump's voters again, is as close as possible to being in a consequence-free zone to cast a public vote of conscience, yet he is as committed to the crazy as ever.

Although I initially expected that I would endorse the secret ballot idea in that column, I chose not to do so for two reasons: (1) My Verdict colleague Dean Vikram Amar and his colleague Professor Joshua Mazzone wrote a persuasive column on this very topic during Trump's first impeachment, and much more importantly, (2) I am less convinced than ever that the Senate's vote in this trial matters, as I will explain in greater detail in my next Dorf on Law column tomorrow.  Therefore, when I finally reached the point in my column at which I explicitly addressed the question of a secret ballot, I shrugged and said something that is rather out of character for me, which is that I do not have a strong opinion either way.

Here, I want to pick up on an idea that I briefly discussed on Tuesday and which Democrats have emphasized in their case against Trump.  Specifically, they warn that a president should not be allowed to escape all constitutional accountability by committing impeachable offenses shortly before leaving office.  This encompasses Lead Impeachment Manager Jamie Raskin's "January Exception" idea as well as the notion of a strategic resignation.

 

My question here is: Could a president -- under the Republicans' crackpot theory that Raskin rightly mocks -- craft a strategy that would allow him to stay in office even if two-thirds of the Senate were to convict him of high crimes and misdemeanors?  The surprising answer is: Maybe!

Harvard Law School Won't (And Shouldn't) Discipline Prof. Mark Ramseyer For His Apologia For WWII Sex Slavery ( And What Should Happen Instead) - UPDATED

 by Diane Klein

J. Mark Ramseyer, Mitsubishi Professor of Japanese Legal Studies at the Harvard Law School, has published one of those law and economics papers that so many of us have come to dread - you know, the kind that revisits some historical horror to explain to us why "game theory" makes that historical horror perfectly OK, if you look at it just so.  Or why some reactionary or bigoted political position somehow just makes rational sense. It's the kind of pseudo-scholarship that demands that the reader first abstract away from everything that actually matters in law (like the fact that human beings are involved), and then reasons tendentiously but triumphally to its preordained conclusion.  The most notorious of such papers also typically contain an aspect of the "naughty"/prurient - these brave scholars are daring to say what no one else will, about some taboo subject or other.  This time, it's Ramseyer's argument that "well, actually" Korean sex slaves during World War II (sometimes known as "comfort women") were rationally contracting parties, and yes, you can guess the rest. 

Did the Supreme Court Inadvertently Exempt Movies and Other Secular Expressive Activities From COVID Restrictions?

 by Michael C. Dorf

On Thursday evening, I'll be one of three panelists appearing at a webinar hosted by the Federal Bar Council on the topic Religious Freedom 2021: Too Much or Not Enough? I look forward to an interesting exchange with my fellow panelists, attorney Alphonso David of Human Rights Campaign and Notre Dame Law Professor Stephanie Barclay. I hope we can also engage the substantive views of our moderator, Berkeley Law Dean Erwin Chemerinsky. Attendance at the webinar is free and open to the public, but you need to create an account and register in advance--which you can do by following this link.

Federal District Judge Pamela Chen of the EDNY contacted us about participating in the panel a few months ago, so it is a coincidence that it comes close on the heels of the Supreme Court's latest ruling (its fourth in less than a year), in a case that pits religious freedom claims against state governments' efforts to limit the spread of COVID-19. Late last week, the Court invalidated the most restrictive of California's restrictions on in-person indoor gatherings for worship services (but allowed the singing ban to stand for now).

Last Friday's ruling in South Bay United Pentecostal Church v. Newsom (South Bay II) marks the continued erosion of the deference the Court had been granting to state officials. As my co-blogger Prof Eric Segall explains in a post on the American Constitution Society Blog, that erosion is ill-advised as a matter of public health. Moreover, as Prof Leah Litman writes on Take Care, the decision also appears to change the law without acknowledging having done so; for over three decades, the Court's jurisprudence has officially reserved heightened free exercise scrutiny for laws that targeted religion for disadvantageous treatment; yet a majority of justices in South Bay II appear to depart from that approach, applying something much more like a disparate impact test.

One topic for our Thursday panel will be whether the Court should formally overrule Employment Division v. Smith. That case held that no heightened scrutiny applies when laws and policies burden religion but do not target religion for especially unfavorable treatment. I am ambivalent about Smith. In a perfect world, I would not favor the Smith rule. In our actual world, I worry that a majority of the Roberts Court would use a disparate-impact-on-religion rule to gut legal protections for LGBTQ+ persons. In fact, we seem to be barreling headlong into just that post-Smith dystopia even without the case's formal overruling.

Social Norms in Fourth Amendment Law

By Matthew Tokson

I recently wrote an article with Ari Ezra Waldman, "Social Norms in Fourth Amendment Law," forthcoming in the Michigan Law Review. We look at how courts use social norms throughout Fourth Amendment law and point out several problems with this quasi-sociological approach. 

In theory, social norms can provide an objective basis for courts’ constitutional decisions, grounding Fourth Amendment law in familiar societal attitudes and beliefs. But in reality, social norms can shift rapidly, are constantly being contested, and frequently reflect outmoded and discriminatory concepts. We explore some contemporary sociological literature on social norms and the social construction of technology that bear this out. And we examine how courts’ reliance on norms leads to identifiable errors in Fourth Amendment jurisprudence.

Trump's Impeachment Defense and the Problem of "Insider Political Violence"

 by Michael C. Dorf

Last week Donald Trump's (latest batch of) lawyers filed their formal Answer to the impeachment charge. It makes two main arguments: (1) that the Senate trial is unconstitutional because Trump is no longer president; and (2) that Trump was merely exercising his constitutional right to free speech.

Point (1) is very clearly wrong, as numerous commentators, including Prof Buchanan on this blog, have pointed out. Neither Trump's lawyers nor the 45 Republican Senators who accept this makeweight argument have an answer to the objection that under their reading of the Constitution, an officer could evade the express provision for disqualification by resigning the moment after the Senate convicts. I'll say more about Trump's free speech defense momentarily, but first I want to address one other bit of illogic in the Answer.

The Answer walks up to the line of asserting Trump's own lies about voter fraud but does not quite get there, instead contending that there is insufficient evidence for a reasonable jurist to conclude whether Trump's claims about the election were true or false because state and local officials "under the convenient guise of COVID-19 'safeguards'" changed election procedures "without the necessary approvals from state legislatures."

While not endorsing Trump's election-fraud lies, that statement is highly misleading and probably deliberately so. It conflates the "legislatures-only" theory of Article II that a majority of Supreme Court justices seem to like (but which has nothing to recommend it) with a factual claim. Whether a state legislature approved or didn't approve an interpretation of state election law and whether that interpretation is sufficiently implausible to constitute a "change" in state election law have nothing to do with whether, as a consequence of the ostensible change, votes are fraudulently cast or counted. Statements by Trump like "in certain swing states, there were more votes than people who voted, and in big numbers" are demonstrably false and would be false even if one fully accepted the legislatures-only theory and thought that changes to election law occurred outside the scope of Article II.

So sure, Trump's lawyers don't endorse his election-fraud lies, but their claim that it's impossible to tell whether Trump was lying because the truth is obscure is itself blatantly false.

Now let's turn to free speech.

A Biblical Question Posed by the SCOTUS Nazi Art Appropriation Case

By Michael C. Dorf

On Wednesday, the Supreme Court unanimously rejected a lawsuit by the heirs of German Jewish art dealers who alleged that Nazi Hermann Goering had forced their ancestors to sell extremely valuable works for about a third of their market value. The bottom line in Federal Republic of Germany v. Philipp may well be defensible on the merits. A German cultural institution and a commission that investigates art stolen by the Nazis concluded that the particular works in question were actually sold at fair market value. That determination might be right and could be entitled to some sort of preclusive effect in any event.

However, the US Supreme Court's decision was not based on the merits or deference to another adjudication. Rather, the Court held that the Foreign Sovereign Immunities Act (FSIA) does not authorize suit, thus leaving intact Germany's foreign sovereign immunity. Put differently, the Court would have ruled against the heir-plaintiffs even if the evidence of uncompensated appropriation were rock solid. The Court so ruled despite the fact that the statutory text abrogates foreign sovereign immunity in cases "in which rights in property taken in violation of international law are in issue." Genocide violates international law, so the plaintiffs argued that art appropriated as part of a genocide fits the statutory language.

The unanimous opinion by Chief Justice Roberts rejects the plaintiffs' reading of the FSIA. In order to trigger the abrogation, the appropriation must violate the international law of property, not the international law of genocide, he says. Despite the Court's unanimity, that result was hardly foreordained. It also stands in tension with some very old moral wisdom. To be clear, I'm not saying the ruling is wrong; I am saying that the case ought to have occasioned more angst than it apparently did.

Progressives vs. Neoliberals Again: The 'Targeting' Debate

by Neil H. Buchanan

On January 5 of this year, no one could have known precisely what would happen the next day, but at least some of us were on high alert.  In my Dorf on Law column that day, I wrote that many people were "terrified about the treasonous actions of Donald Trump and his parasites."  For weeks, we had noted with alarm that Trump had promised his followers that his January 6 event was going to "be wild," and indeed it was.

Even so, my column that day was not focused on Trump's soon-to-bear-bitter-fruit attempts to carry out a coup to keep himself in power.  Instead, I preferred to imagine that he would fail (as he has so often failed) and that something like the familiar policy debates might again come to the fore:

"This column, then, is an expression of optimism.  We might soon, I dearly hope, be back to arguing about legitimate differences over policy matters.  More interestingly, we might soon be back to waging an important intramural fight among non-Trumpers over the future of neoliberalism -- the incremental, technocratic, intellectually defensive approach to economic policy that is somehow both appealing and disastrous -- and its uncomfortable tension with progressivism."

And here we are.  True, Republicans (when they are not kissing their failed leader's ring or pretending not to know anything about their most extreme colleagues) are back to lying about policy and insisting that everything that Democrats want to do is bad for the economy.  But as anyone could have predicted, Democrats are back inside the not-so-warm cocoon of their intramural debate between progressives and neoliberals.

Indeed, the very issue that motivated my January 5th column, whether to allow relief payments to go in part to upper-middle-class Americans as well as to middle-class and poorer Americans -- that is, to allow the checks to be "poorly targeted" -- has become a flash point among Democrats.  With Republicans having successfully sliced the $2000 relief payments down to $600 in the stopgap relief bill in December, President Biden now wants to give the other $1400 as part of his larger relief bill.

Here, I want to talk about the "targeting" question as an entry point to the larger debate about neoliberalism.  Short version: Progressives should not categorically reject targeting of benefits, but they should not allow themselves to be trapped by neoliberals' pious pretensions to being the true guardians of the needy.

Simplicity, Clarity, and Justice

 by Michael C. Dorf

My latest Verdict column uses the border wall litigation before SCOTUS to lament the incredible complexity of federal court procedural law. I direct interested readers to the column for further details, but here's the barebones summary of the background: (1) Trump declared an emergency to move money Congress appropriated for other purposes to border wall construction; (2) environmental and other public-interest organizations that would be injured by the border wall sued to block it and won in the 9th Circuit; (3) Trump's DOJ went to SCOTUS arguing that plaintiffs lack a cause of action and do not fall within the zone of interested protected by the statute on which they rely; (4) plaintiffs, with support from amici including yours truly, argued that where, as here, plaintiffs seek to enjoin unconstitutional action, they do not rely on a statute for relief and thus have an equitable cause of action to which the zone-of-interest test does not apply; (5) President Biden rescinded the wall funding, and his acting SG, with the plaintiffs' consent, asked the Court to take the case off the calendar.

As I explain in the column, the Trump DOJ's argument contesting cause of action and invoking the zone-of-interest test is easy for the casual reader to mistake for an argument that the plaintiffs lack standing. Although I don't go into the point in the column, the zone-of-interest test itself can be conceptualized as a kind of limit on third-party-standing. I won't go deeply into that point here either, except to say, as I do in the column, that there are a great many procedural doctrines that limit (or grant) access to federal court, each with sub-doctrines and sub-sub-doctrines. Citing Jerome Frank, I acknowledge that it is naive to think that the law can always be clear and simple. Nonetheless, I say, the complexity of federal procedural law goes beyond what is needed to keep up with life's complexity.

Here I want to briefly elaborate on a point I make near the end of the column. I note there that "simplifying the law will not necessarily clarify it. Indeed, the two goals often work at cross-purposes. To clarify the law requires specifying the outcome in a great many different circumstances, which will often require a detailed, that is, long and complex, list of rules, not a short simple rule or standard." My suggestion will be that there is often a tradeoff among simplicity, clarity, and justice.

What the Constitution's Text Does Not Say Plainly About Impeachment

by Neil H. Buchanan

 

Last Thursday, I wrote paired columns on Verdict and here on Dorf on Law in which I responded to Senate Republicans' claim that the Constitution does not allow a former president to be impeached or convicted.  I explicitly stated in those columns that my purpose was to show that the constitutional text alone made clear that their argument is wrong.

I did not, of course, endorse textualism as that term is currently understood and used by conservative legal scholars.  And I went to great pains to say that there are excellent non-textual arguments -- based on precedent, original intent, pre-Constitutional history, policy implications, and so on -- that take us to the same conclusion, which is that the Senate can and must uphold our constitutional order by trying and convicting Donald Trump.  One particularly good contribution to that list of other arguments, from Professor Bob Bauer of NYU Law, can be found in today's New York Times.

 

In short, my sole purpose in writing those columns last week was to point out that even if we were to look at no interpretive method other than the plain meaning of the words in the Constitution, we would have no choice but to conclude that the Republicans are wrong.

Today, I want to think about some of the related issues on which the constitutional text is at best murky and in some cases nonexistent.  What happens when there is no clear, on-point language to which we can appeal?  The possible implications for various situations are surprising.

Of Stone Mountain, Confederate Flags, and American Racism

By Eric Segall

Less than ten miles from my home near Emory University in Atlanta is Georgia's most popular public attraction. Every year approximately 4,000,000 people drive through Stone Mountain Park to visit one of its many exhibits. To get from the entrance of the park to the popular hiking trail at the bottom of the mountain, visitors go down Jefferson Davis Drive and then pass Stonewall Jackson Drive and Robert E. Lee Boulevard. At the bottom of the trail leading up to the mountain is an American flag and four Confederate flags for all to see. Here is a picture:

In addition, at the center of the park is, of course, the largest confederate symbol in the country: a nine story etched carving of Jefferson Davis, Stonewall Jackson, and Robert E. Lee. Here is a picture that does not do justice to the size of the etched carving.

The flags and the huge carving do not represent anything other than naked racism. Work started on the park in 1915, but it wasn't accessible to the public until 1965 when it opened on the 100th anniversary of, wait for it, President Abraham Lincoln's assassination. As the park was being conceived, an Atlanta newspaper reporter wrote, “Just now, while the loyal devotion of this great people of the South is considering a general and enduring monument to the great cause ‘fought without shame and lost without dishonor,’ it seems to me that nature and Providence have set the immortal shrine right at our doors." 

Predicting the Supreme Court's Next Moves: Fourth Amendment Edition

By Matthew Tokson

Now that American politics has returned to something resembling normalcy, it's a good time to consider the future of the Supreme Court in the Biden era. Eric Segall recently previewed the direction that the Court is likely to take over the next several years. As he convincingly argues, on issues like abortion, regulation of business, civil rights, affirmative action, voting rights, and many others, the Court's rulings will likely shift from conservative to very conservative. On a theoretical note, I'd add that increasing polarization and the expanding politicization of policy issues will likely shrink the sphere of legal issues where party affiliation is irrelevant. To be sure, the recent resolution of cases like Trump v. New York suggests that the Court may exhibit meaningful restraint in adopting radical changes to existing laws or constitutional practices. But generally, the Court's strong rightward tilt will drive outcomes in most of the ever-growing proportion of cases with a strong political valence.

In the Fourth Amendment context, however, there is less polarization--and substantial ambiguity. Justices Barrett and Kavanaugh are a particular enigma here, as they've decided few or no Fourth Amendment cases since joining the Court. And Fourth Amendment search law was undergoing dramatic changes even before the Court's composition changed. In this post, I'll describe some mysteries about the future direction of Fourth Amendment law and make some evidence-based predictions about the new Justices' approaches to future cases. 

Why Are Republicans Unable to Understand the English Language? (impeachment edition)

by Neil H. Buchanan

At this point, I think Republicans have done Democrats a favor by insisting on delaying the start of the impeachment trial.  To be clear, I am talking about the second delay, which pushed the trial back from the first few days of President Biden's term to the week of February 8.  The first delay, when Mitch McConnell refused to take up the issue at all before the end of Donald Trump's term, was both dangerous (because we are simply lucky that nothing worse happened in Trump's final few days) and dishonest ("It's too soon" having been immediately followed by "It's too late!").

But as to the second delay, I think that Democrats have to be pretty happy.  Republicans are disgracing themselves once again, all the while forcing an outcome that their most fully disgraced members -- presidential pretenders all -- truly do not want but have to pretend to support.  Meanwhile, more and more evidence continues to pile up regarding Trump's culpability, even as we learn additional depressing facts about the organization and execution of the January 6 coup plot.

 

Even though the Republican caucus will almost surely not see seventeen defections, this is still good news for Democrats, from a political standpoint.  There is a point at which further delay would be more damaging than helpful, but I do not think that two weeks is anywhere near that limit, and if it were up to me, I would be fine with an additional postponement.  If, as Republicans self-fulfillingly insist, this is to be a partisan show trial with no doubt as to the outcome, it will be a better show if it includes even more evidence to put on display.

But of course, Senate Republicans -- led by Rand Paul,  the poster child for the Dunning-Kruger effect and the man who is in over his head on every issue (seriously, does he know less about economics or law, his two favorite subjects on which to issue self-important pronouncements?) -- tried and failed to prevent a trial from happening at all.  They loudly proclaimed to the world that it is unconstitutional to impeach an ex-president.  That assertion is so wrong that it is worth exploring just how crazy the Republicans' position is.  And that exploration leads inexorably to a rhetorical question: Can they not read?

 

John Kerry's Question--Past, Present, and Future

by Michael C. Dorf

Before John Kerry was climate czar, before he was the Secretary of State who brought the US to the Iran nuclear deal and the Paris Climate agreement, before he was the Democratic Presidential candidate who was unfairly attacked by the fatuously named Swift Boat Veterans for Truth, and even before he was a US Senator from Massachusetts, Kerry was a multiply decorated young naval officer serving in Vietnam. He came to national prominence nearly fifty years ago when he testified before the Senate Foreign Relations Committee. Kerry famously asked, "how do you ask a man to be the last man to die in Vietnam? How do you ask a man to be the last man to die for a mistake?"

The question was urgent then. A variation of it is urgent now--both in the ongoing battle against COVID-19 and for the at-least-equally-urgent-and-ultimately-even-higher-stakes battle with climate change that Kerry will now spearhead for the US.

The Upside of Senate Republicans’ All-but-Certain Acquittal of Donald Trump, or, What Cruz and Hawley Truly Want

by Neil H. Buchanan

 

I hereby state clearly and unequivocally up front that Donald Trump should be convicted in the upcoming Senate impeachment trial.  Whatever one might have thought about his first impeachment, or about anything else that he has done that endangered and diminished the nation, he is guilty as charged -- guilty as sin -- in the current article of impeachment.  And it matters that he be so found.

 

That being said, my focus today is on the consequences going forward of the outcome in the Senate, no matter which way it goes.  My contention is that it is unclear which outcome would be good or bad for the future interests of Republicans or Democrats, so Democrats and all others who are not in the death cult need to keep the stakes in Trump's trial in perspective.

 

That is, I can spin a story in which good things happen for Democrats even after an acquittal, and I can tell a different yarn where bad things happen to them after a conviction.  In that sense, maybe we should not care so much how this drama plays out.  It matters, but does it matter?

The Trump Era is Over: Prepare for the Supreme Court’s Conservative Onslaught

 By Eric Segall

The Trump Administration is finally over, and the Biden Administration will be able to undo some of the great damage done by its predecessor. For example, Trump’s irrational rule requiring women to purchase medical abortion pills in person, overruled by a federal judge but then reinstated by the Supreme Court, will almost certainly be reversed by Biden’s Department of Health and Human Services. There are a myriad of other executive branch decisions and regulations that Biden can, over time, reverse.

But there is one important Trump legacy the new President will not be able to change--the installing of three ultra conservative Justices who along with Chief Justice Roberts and Justices Thomas and Alito, will, absent serious Court reform, overrule important legislation for decades or more. This six-three GOP Court may be the most conservative one since before the New Deal. I detail below what to expect from the Roberts Courts in the next few years and then suggest a few desirable, but highly unlikely, fixes.

A Digression on the History of the Nazis, Legal Fig Leaves, and Lessons for the United States

by Neil H. Buchanan

In a Verdict column last week, I dissected the utter lawlessness of Republican Senator Josh Hawley's attack on the 2020 election results.  Along the way, I returned to a concept that I have called "legalistic lawlessness," which is the socially presentable alternative to openly thuggish autocracy.  In that dressed-up version, the raw power of the autocratic regime is given legal cover, which has the effect of giving people of good conscience -- especially lawyers and judges -- a way to avoid confronting their own complicity in the brutal, antidemocratic actions of the tyrant: "I'm just following the law!"

Drawing from one of the two or three most notorious historical examples of a murderous national government taking refuge behind the cover of its own unjust laws, I wrote:

"[I]t feels a lot better to judges and legislators to say that what they are doing is legitimate. The Nazis passed laws that made the Holocaust not merely legal but mandatory. In the United States, in addition to the fully legal institution of slavery, we have had legal regimes that justified or ignored lynchings, literacy tests, forced sterilizations, and more."

As good luck would have it, one of Verdict's frequent readers is a retired German jurist who has contacted me in the past about my writings.  Born in the mid-1930's, this gentleman is unfailingly pleasant and deeply engaged with ideas.  In response to my comment about the Nazi regime, he contacted me with a friendly correction, which I found so fascinating that I want to reproduce it here:

Post-Trump Republicans as the Post-Stalin Politburo: Autocracy Without the Cult of Personality

by Neil H. Buchanan

 

Today is the day on which I published the Verdict column that I feared I might never be able to write, acknowledging that my longstanding prediction that Donald Trump would never leave the White House turned out to be wrong.  Gloriously, wonderfully wrong.  Nothing that I have written over the last four-plus years was at all implausible, and on many days a horrible outcome seemed all but a lock.  History took a different turn, however, and that is good for the future of humanity.

Predicting that Trump and the Republicans would steal the 2020 election and then install what would effectively be a dictatorship (while maintaining the false trappings of democracy) was not my only mistaken prediction, of course.  I also wrote, for example, that Trump would both try to pardon himself and resign a day early to get Mike Pence to pardon him as an insurance policy.

 

Because of the last, deadly gasp of Trumpism's ugliest manifestations on January 6, however, Trump apparently decided that it would be worse for him to try to pardon himself, and he did not trust Pence to pardon him, either.  No one could have predicted that turn of events, however, so that was a matter of Trump overplaying his losing hand and finally facing some of the consequences of doing so.

Readers of today's Verdict column will find, however, that I am anything but optimistic about the nearly-immediate future of American constitutionalism.  Although I have long tied my predictions of the end of true democracy and the rule of law to the toxic presence of Trump, I argue in that new column that Trump has inadvertently pointed the way for Republicans to complete an anti-democratic coup in the very near future.

The question is, what would such a violation of our most basic political commitments look like?  Does it require Trump or someone like him to lead the way into the darkness?

Free Speech, Due Process, and Other Constitutional Limits in Senate Impeachment Trials

by Michael C. Dorf 

[**Updated to acknowledge two articles I neglected to cite in the initial version:]

After four years that felt like four lifetimes and a post-election eleven weeks that felt like eleven years, Inauguration Day is finally here. My new Verdict column addresses one of the challenges that will now confront President Biden and other rational Americans: the fact that so many people believe in dangerous nonsense. I suggest that the reasons for such beliefs are pretty deeply rooted in human psychology. The political power of conspiracy theorists and the craven politicians who do their bidding might not derail the Biden legislative agenda, but the conspiracy-theory-believing Americans themselves will make it harder to accomplish some of the urgent tasks that require public buy-in.

Now I want to shift gears and discuss the upcoming Trump Senate impeachment trial--which is being described by some as another potential obstacle to the Biden agenda, if for no other reason than that it will distract the Senate from other business. I believe that particular obstacle can and should be overcome by expeditious scheduling by soon-to-be-Majority Leader Schumer. That said, interesting constitutional questions await in the Senate impeachment trial.

In a recent essay, I offered three reasons why the free-speech defense suggested by some commentators should not avail Trump in his Senate impeachment trial: (1) Non-criminal conduct can be the basis for impeachment, so it does not matter whether Trump's speech at the January 6 rally preceding the storming of the Capitol and the course of conduct that led up to it amounted to a crime; (2) Trump's goal in fomenting violence may have been to create a pretext for martial law and the delay or cancellation of Biden's inauguration, which would be a separate ground for impeachment; and (3) in any event, Trump did commit the crime of incitement of violence, which, applying the Brandenburg test, was not shielded by the First Amendment.

In response to my prior essay, a colleague asked me an interesting set of questions about the relation between (1) and (3). Granting that non-criminal conduct can be the basis for impeachment, the colleague asked, is the fact (or not) of First Amendment protection irrelevant to impeachability? More broadly, to what extent, if any, do constitutional rights apply in a Senate impeachment trial? I'll address both of those questions, along with some further wrinkles involving the 1993 SCOTUS decision in the Judge Walter Nixon Case, which forecloses judicial review of impeachment procedures.

What Law School Couldn't Do For Josh Hawley and Ted Cruz

By Diane Klein

The addition of mandatory legal ethics instruction in ABA-accredited law schools is one of the lasting legacies of Watergate. Recent events at the Capitol (and if we're honest, throughout the Trump Administration) demonstrate conclusively that this reform was a complete failure. If that sounds like an overstatement, we might do well to ask why it was ever imagined that instruction in professional ethics would somehow infuse law students with the civic virtue of respect for the rule of law, or somehow prevent them from turning out to be the sort of bad people who countenance or even encourage lying and violence in order to achieve their personal or political ends. No two-unit course in law school (even coupled with a 60-question multiple choice test) could ever do that - as has been known since at least the time of Aristotle.

Rudy Giuliani's (Ridiculous) "True Enough" Defense of Trump

by Michael C. Dorf

Dr. Martin Luther King, Jr., was born on January 15, 1929. Today is the official annual day of recognition of his birth. In past years, I have sometimes posted MLK Day essays on a theme related to Dr. King's life and work. I considered doing so today. Following a year that saw both massive protests for racial justice and political violence that included expressly racist symbols and language, there would certainly be no shortage of material. But I find myself too unsettled in my thoughts about such matters to do so today (although what I say will touch upon race and racism in one particular). I am confident that interested readers will find no shortage of such reflections elsewhere.

Accordingly, and with apologies for the fact that doing so does not quite match the occasion, I offer some commentary on the latest nonsense to ooze forth from the brain of the man who was once "America's Mayor."

Ignoring Right-Wing Terrorism Led Us to This Dangerous Situation

by Neil H. Buchanan

This country has been downplaying and even ignoring the threat of domestic terrorism for decades.  I concede that this is a step up from the previous decades of state-sponsored racist terrorism, but looking the other way while non-state actors (and all too many state actors "going rogue") do their worst to vulnerable populations amounts to little more than outsourcing what spy novelists call the "wetwork" to private contractors.

To be sure, things did become less bad after the end of the Jim Crow era.  I do not have the statistics at hand, but I expect that they would show that the indiscriminate killing of nonwhites has gone down, hopefully precipitously.  Even so, the fundamental point of the Black Lives Matter movement, indeed the reason for the existence of the entire panoply of civil rights groups, is that we can see with our own eyes that America in the third decade of the twenty-first century still treats non-White lives too often as disposable.  What now?

Too-Clever Lawyering Is Toxic, But Hawley's Arguments are Not Even Mildly Clever

by Neil H. Buchanan

 

As a law professor and a devout believer in the peacekeeping role that a well functioning legal system can guarantee, I am especially worried when the rule of law is undermined from within.  The most common versions of this problem include lawyers abusing the legal process in nakedly cynical ways, strategies that cause people to exclaim: "That's why people hate lawyers!"

Dramatic depictions of lawyers in film and on television feed on and reinforce that kind of system-threatening erosion of confidence in the rule of law.  I recently caught up with two of the best shows on television that I had inexcusably ignored until now, "Breaking Bad" and its subsequently produced prequel, "Better Call Saul."  The latter show is built around a relatively minor character from the former show, Jimmy McGill, who changes his name to Saul Goodman (as in " 's all good, man!"), also known as "Slippin' Jimmy."  Lawyers do have many positive moments on those shows, but even more bad ones.

But those are merely two of the countless shows and movies, covering the full range of quality, that give people reason to suspect that the law is a big con.  And not without good reasons.  Law is too often a commodity that goes to the highest bidder.  Too many prosecutors suborn perjury, abuse the plea process, and refuse to drop cases even after exculpatory evidence has been produced and verified.  Too many divorce lawyers make matters worse for all involved.  (Another dramatic marvel: "Marriage Story.")

And by "too many" in the paragraph above, we ought to mean "any."  What happens when the system breaks?

Incitement, Imminence, and Free Speech: The Internet is a Game Changer

 By Eric Segall

There is a great tension between constitutionally protected free speech and expression that incites others to commit violence or other illegal acts. For example, pure political speech that includes heinous content such as bigotry, sexism, or general expressions of hatred towards identifiable groups has been protected in America by the Supreme Court since the 1960's, while other democracies do not tolerate such ideas. Holocaust deniers cannot be punished in America while in some European countries they can be fined and/or imprisoned for such speech. There is a general consensus here that non-targeted expressions of hate should be met with more speech, not governmental censorship. Additionally, we are allowed to speak out against our government in ways that do not include specific instructions to commit crimes or acts of violence. But where is the line between calls for dramatic change and illegal incitement or what the Court has called true threats? The tragic events of last Wednesday raise these admittedly difficult questions.

The key Supreme Court decision in the area of incitement is Brandenburg v. Ohio. In that case, the Supreme Court overturned the conviction of a Ku Klux Klan leader for making hateful comments about Blacks and Jews. Among other things, he said, “I believe the n****r should be returned to Africa, the Jew returned to Israel." He was convicted under an Ohio law that made it a crime to “advocate or teach the duty, necessity, or propriety of violence as a means of accomplishing industrial or political reform." The Court, recounting prior cases, said that in order to be punished for incitement, the speech must be “directed to inciting or producing imminent lawless action and is likely to incite or produce such action." The Ohio law didn't satisfy that standard, and the Klan leader was set free. This test, unfortunately, is still the law today.

As I detailed in a prior article, lower courts have had an enormously difficult time applying this standard to the internet. The main difficulty has been the imminence requirement. As I've previously written, the imminence requirement:

makes sense in the context of fiery speech uttered during political rallies, but it makes much less sense when applied to speech posted on the Internet where the threat can last forever and be seen by millions of people around the world. For example, there is a significant difference between a person who at a pro-life rally, yells that a particular doctor should be “stopped” if a year from now he is still performing abortions, and a person posting on the Internet the doctor’s home address and suggesting the same sentiment. The imminence requirement makes sense for the former but hardly lessens the danger of the latter. The fact of permanence, as well as the great reach of the threat, makes Internet speech more dangerous than rallying cries at political protests, and the Brandenburg test is just not flexible enough to deal with that problem.

Don't Ask Whether Trump Falsely Cried "Fire" In A Crowded Theater. Ask Whether He Tried To Start A Reichstag Fire

 by Michael C. Dorf

Among the most foolish ideas circulating right now is that Donald Trump cannot be impeached and removed for his role in fomenting an insurrection aimed at Congress because he engaged in constitutionally protected freedom of speech. The idea is foolish for at least three reasons:

(1) Conduct, including conduct accomplished through speech, need not be criminal in order to be the basis for a valid impeachment. Even Trump's apologists acknowledged as much during the hearings over Trump's first impeachment. So, if we assume arguendo that Trump cannot be criminally prosecuted for his role in inciting the insurrection, he can nonetheless be impeached, removed, and disqualified from holding office in the future based on his outrageous assault on democracy up to and through January 6.

(2) But let's be clear that this is at best an arguendo assumption. We don't yet know the full extent of Trump's role behind the scenes both before and during the assault on the Capitol. As Prof Philip Bobbitt writes persuasively, perhaps the most plausible account of Trump's conduct was that it formed part of a plot to create sufficient violence and chaos so as to give him a pretext to declare martial law and refuse to give up power. Legal scholars and other observes are asking whether he crossed the line from lawful advocacy to something like Holmes's man falsely crying "fire" in a crowded theatre. The more relevant question is whether Trump's provocation was part of an effort to create a Reichstag fire.

(3) Even taking an unduly narrow and lawyerly view of the matter, Trump did commit a crime that could be the basis for both criminal prosecution as soon as he is out of office and impeachment, removal, and disqualification now. The key precedent is Brandenburg v. Ohio, which, like the January 6 insurrection, featured white supremacists and antisemites. It states the following legal standard:

the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.

The language after "except" is a pretty good description of what Trump did on January 6.

Of Veterans, Constitutional Text, and Sovereign Immunity Run Amuck

 By Eric Segall

Disclaimer: There are serious threats facing our country and last week's events obviously should be on everyone's mind. But life does go on and this post was written before the attack on our government. There will be posts this week on that subject, but the topic of this one is extremely important, so I hope people will understand why we are posting it today. The pending cert petition discussed below needs to be granted by the Court.

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The United States Constitution expressly grants Congress the authority in Article I, Section 8 to "raise and support" the armed services. Pursuant to this enumerated power, Congress enacted the Uniformed Services Employment and  Reemployment Act ("USERRA") which, among other things, prohibits employers, including the states, from discriminating against veterans because of their military service. 

Although this statute is easily within Congress' authority under its power to raise and support the military, and although Article VI unambiguously makes federal law supreme, "anything in the Constitution or laws of any State to the contrary notwithstanding," a Texas appellate court ruled that the law was unconstitutional because of state sovereign immunity, and the Texas Supreme Court refused to hear the case. This decision is not only grossly unfair to veterans across the land, but is completely inconsistent with the Constitution's text and history. The blame, however, lies not with the Texas courts but with the United States Supreme Court.