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.

Teach Your Parents Well

by Neil H. Buchanan

 

Generally, I like to think that I "get" American politics.  That does not mean that I understand what is going on in, for example, Ted Cruz's head when he says that "voter fraud is real.  It is a problem ... Voter fraud has been persistent from the very first election that has ever occurred."  There is no there there, but I get what he is up to.

 

That is not to say that this is not puzzling, even on its own terms.  Particularly coming from someone who has claimed merely to be representing people whose unspecified "concerns" about the 2020 election supposedly need to be closely examined, I understand neither why Cruz is now saying unequivocally that people's worries about voter fraud are based in fact, nor why he is backing up that claim with something as pathetic as: "There's always been fraud, I mean, amirite folks?!"

 

But as Professor Dorf pointed out in his column yesterday, while it is truly baffling to think about what Cruz might have been thinking when he put his name on an embarrassing Supreme Court submission, it is quite easy to know what Cruz is doing in the larger sense: he is, as always, seeking "advancement in the right-wing-o-verse."  Moreover, although it is impossible for me to understand why what Cruz and his ilk are doing brings thrills to the people to whom these things are pitched, I can follow the nakedly corrupt logic: the rubes like Trump and owning the libs, so ambitious and shameless people praise Trump and try to own the libs.

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

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

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

 by Michael C. Dorf

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

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

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

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

Beyond Rittenhouse: The Future of an Armed Public

 by Michael C. Dorf

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

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

by Neil H. Buchanan

 

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

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

That was a good letter.  People who follow the US political scene cannot help but groan upon reading it, however, because there is still apparently zero chance that Joe Manchin and Kirsten Simema will do what is necessary.

 

Should despondency thus give way to despair?  No, but the political imperatives are going to make the next few years truly odd, even if we find a way to thread the needle and move back toward political sanity.  How can we alarm people enough to motivate them but not so much that they simply give up?

Interpreting Law and the Useless Debates Over Textualism and Purposivism

 By Eric Segall

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

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

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

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

 by Michael C. Dorf

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

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

Anti-Environmentalism for the Good of the Poors

 

[Note to readers: In my new Verdict column today, "Democracy Is Dying, But We Do Not Have to Lose Our Souls," I confront one of the more shocking comments that I have seen recently from a non-Republican.  Earlier this week, Washington Post columnist Max Boot casually but enthusiastically encouraged Joe Biden to contrive a "Sister Souljah Moment," suggesting that Democrats distance themselves from anti-racists by targeting and denouncing people who Boot thinks are harming the Democrats' brand.

 

[I honestly never thought that I would see someone invoke the Sister Souljah controversy as a positive model for political strategy -- certainly not someone who otherwise so often makes intelligent contributions to the political discourse.  I frame my shocked response around an extended reference to a Stanley Kubrick film, "Paths of Glory."  That rhetorical setup might or might not work for readers, but I thought it was important to put under the glare of an appropriately harsh light Boot's bland suggestion that Democrats should scapegoat relatively powerless people (which, by the way, would potentially put those political patsies in very real danger).

 

[In any case, as I mention in that column, I hope at the very least that some people will now decide to watch that classic film.  It happens to be a great courtroom drama, which fits with the legal themes of Dorf on Law and Verdict.  But sometimes, greatness is simply greatness and should be enjoyed for the pure beauty of it.]

 

 

By Neil H. Buchanan

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

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

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

Mistaking Inferences for Penalties

by Sherry F. Colb

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

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

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

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

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

The WhatAreYaGonnaDo Response to Climate Change

by Neil H. Buchanan

I have been back on the road this semester, again giving talks to mostly academic audiences regarding two of my primary research interests: intergenerational justice and a critique of orthodox economics.  Although the UK and EU are still in various stages of partial reopening, I have been fortunate to be welcomed back onto several campuses by colleagues during my sojourn on this side of the pond.

 

As always, the exchanges are stimulating and intellectually productive -- sometimes in unexpected ways.  During the discussion period after one recent lecture, for example, I was surprised to find myself responding to one questioner's blunt climate denialism.

 

My surprise was the result of two things.  First, the substance of my lecture was not focused on the question of climate change itself.  To be sure, I brought up the topic and took a position on it, but I did so as a way of setting up what I thought was a more interesting question about how to compare different threats to future generations.  Still, Q&A is designed to be listener-driven, and there is nothing wrong with a person picking up on a non-central point and pursuing it.  Indeed, that sometimes leads to fruitful discussions and even to fresh thinking that can inspire entirely new research projects.

 

The second reason that I was surprised, however, was that the questioner adopted a particularly unvarnished version of the don't-worry-be-happy response to catastrophic climate change.  Again, there is nothing especially unusual about people exploring -- especially in an academic setting -- off-the-wall ideas or extreme arguments.  Even so, when a question ultimately relies on a set of presumptions and implicit moral choices that are well-nigh indefensible, it continues to startle.

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

The Spurious Constitutional Issues in the OSHA Vaccine Mandate Litigation

 by Michael C. Dorf

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

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

 by Michael C. Dorf

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

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

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

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

by Neil H. Buchanan

 

Big Bird (who, I now know, is supposedly six-years-old) publicly announced that he had been vaccinated as soon as anti-Covid shots were approved for school-aged children. Ted Cruz found out about this and -- not having any interest in doing his job -- used his Twitter-troll time this week to grumble: "Government propaganda ... for your 5-year-old."

 

Notwithstanding the various forms of snark that I tossed into the paragraph above, Cruz is not my focus here.  He happens to be endlessly mockable, but I want to use his own-the-libs tweet simply as a recent, vivid example of something that conservatives have been doing for generations: personifying and then vilifying this thing called The Government.

 

This particular culture-war moment will soon be forgotten.  What is interesting is that even after having become completely Trumpified, movement conservatism still lapses back into tired tropes about Big Brother.  Is it good news that they still have nothing to say that is non-embarrassing?

The Troubling Phenomenon of Enforced Unlaws

by Matthew Tokson

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

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

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

by Neil H. Buchanan

The University of Florida, my home institution, is in serious damage-control mode.  As I explained in a column last Friday, the administration of the state's flagship campus recently decided that several of my faculty colleagues could not testify in lawsuits that have been brought to challenge policies enacted by Florida's current group of ruling politicians.  Late last week, the administration then partially reversed course after receiving tons of negative attention and condemnation from around the U.S. and the world.

 

I say "partially" because there is still some uncertainty as to what is and is not allowed at this point, with some possibly-expansive prohibitions against using "university resources" apparently still in place  The university's administration has created a task force to try to come up with a better policy, which should not be especially difficult, given that there are longstanding best practices at the top public universities in the country.  Even more simply, we could go back to the way things were before the politicians stepped in and messed things up this year -- although, as I will emphasize below, that will only work if it is part of a credible commitment to reassure everyone that this will not happen again.

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

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

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

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

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

 By Eric Segall

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

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

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

by Neil H. Buchanan

 

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

As I will explain momentarily, these decisions and public relations blunders have already damaged the University of Florida's national and global reputation.  As a professor at UF's Levin College of Law, that damage concerns me greatly, not only because of its effect on my colleagues but for the collateral effects that it will have on our students.

 

There is, unfortunately, no way to un-ring this bell.  Damage has been done.  The only question now is how quickly the university can change course and try to contain and mitigate the repercussions.  We received part of that answer today, when the university reversed its policy and announced the formation of a task force to sort things out.  Is that enough to make it all go away?

 

The short answer, unfortunately, is that reputations are difficult to build but all too easy to damage.  Any harm to a reputation has lingering effects, even when the situation is corrected quickly.  This case is especially unfortunate in that the damage comes not from something beyond the university's control.  Indeed, the administration has engaged in what my students would call a "self-own," harming all of the stakeholders of our university for absolutely no reason.  Damage control is now necessary, with the welcome reversal of this bad policy to be followed (one hopes) by clarifying the university's commitment to its own stated principles.

Critical Race Theory and the 2021 Election

 by Michael C. Dorf

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

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

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

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

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

by Neil H. Buchanan

 

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

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

With a bit more time to think about it, I decided that the most interesting thing about the BT was not the proposal itself but the insanity of the arguments that had been offered from the right claiming that the tax simply has to be unconstitutional.  That is the more interesting issue for three reasons: (1) As anyone who knows the Democrats might have expected, they quickly abandoned the BT; (2) Even if the BT had been enacted, Republicans in the next Congress would have repealed it long before it could have reached the Supreme Court; but most importantly (3) the arguments that conservatives trotted out against the BT might well be repurposed to attack other taxes.

 

Even in the dystopian post-constitutional future that I have predicted, Republicans might find it more useful to use the courts to repeal progressive taxes than to do so through legislation.  If so, it would be interesting to think about what legal fig leaves they would use to hack away at the taxes that they hate.  I thus wrote a two-part Verdict column (published on Monday and this morning), laying the groundwork to explain how conservatives might try to twist the Constitution and a very bad (but not exactly overruled) precedent to go after taxes that are far more familiar than anything like the BT.

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

 

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

 by Michael C. Dorf

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

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

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

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

by Michael C. Dorf

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

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

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

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

 By Eric Segall

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

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

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

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

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

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

by Neil H. Buchanan

 

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

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

 

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

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

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

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

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

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

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

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

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

by Neil H. Buchanan

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

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

 

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

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

Why SCOTUS Didn't Treat SB8 Like a Capital Case

by Michael C. Dorf

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

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

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

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

by Neil H. Buchanan

 

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

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

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

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

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

 

Intrigued?  Or perhaps confused?  I sympathize.

 

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

 By Eric Segall

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

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

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

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

The Political Psychology of Fiscal Numerology - Debt Ceiling Edition

 by Michael C. Dorf

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

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

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

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

Abortion and the Free Exercise of Christianity

 by Sherry F. Colb

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

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

 By Eric Segall

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

Justice Between Generations in an Unjust World

by Neil H. Buchanan

 

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

 

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

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

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

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

 

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

How Sincere are Religious Objections to COVID-19 Vaccination?

 by Michael C. Dorf

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

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

Minimum Wages, Academic Fads, and the Faux Nobel

by Neil H. Buchanan

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

 

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

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

 

Incompatible Commands in Law and in Everyday Life

 by Michael C. Dorf

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

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

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

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

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

 By Eric Segall

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

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

 by Michael C. Dorf

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

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

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

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

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