Thursday, December 08, 2022

So Much Wasted Time in the Independent State Legislature Oral Argument

by Michael C. Dorf

The oral argument yesterday in Moore v. Harper lasted nearly three hours and yet various Justices seemed to be in so much of a rush--or simply wanted to interrupt the advocates before they finished answering the Justices' questions--that there was no time to make some important points, even as a great deal of time was spent on issues that aren't presented.

Let's start with the biggest time waster. David Thompson, arguing on behalf of the North Carolina legislature, conceded for the sake of argument that the North Carolina Supreme Court gave North Carolina statutes and the North Carolina Constitution a permissible interpretation, regardless of what standard SCOTUS uses in these cases to review a state court's application of state law--whether the completely deferential test federal courts routinely apply pursuant to the Erie doctrine or the somewhat less deferential (but still deferential) test articulated by Chief Justice Rehnquist for himself and Justices Scalia and Thomas in their Bush v. Gore concurrence. The argument Thompson made was that the Elections Clause of Article I, Sec. 4 precludes state courts from invalidating any state legislation governing congressional elections on the basis of a state constitution's substantive provision--regardless of whether the state court interpreted the state constitutional provision correctly, permissibly, or otherwise.

Thus, as each of the three advocates for the other side (a trio of past and present US Solicitors General) pointed out at one point or another, Moore presents no occasion for the Court to say whether it's adopting the Bush v. Gore concurrence's approach or some other approach to deciding how deferential to be in reviewing state court interpretations of state law (whether an interpretation of a statute or a constitutional provision). Nonetheless, a whole lot of attention was paid to that question, including pointless diversions by Neal Katyal (arguing for the private respondents) and Justice Alito.

I'll start with Katyal, then say a few words about Alito. I'll then note some other objections to the substance of what was said. And then I'll add some criticisms of the Justices for what struck me as arguably rude behavior before coming to what should have been the central focus of the argument if so much time hadn't been wasted.

Wednesday, December 07, 2022

If Older White Voters Want to Go Against Their Own Interests, Why Stop Them? Let Me Count the Ways

by Neil H. Buchanan

What's the matter with Kansas so much of the United States?  One of the enduring questions posed by the last few decades of Republican extremism is why so many people vote against their own interests in favor of the party of plutocrats.

Thomas Frank turned himself from merely an excellent journalist into a brand name with his 2004 instant phenomenon: What's the Matter with Kansas?  What happened to the prairie populism that sent people from Kansas and other lightly populated states -- like Senators Frank Church of Idaho, Dick Clark of Iowa, Tom Daschle of South Dakota, and other center-left types in the second half of the Twentieth Century -- to serve in Congress?  Democrats used to be very competitive there, and although Kansas itself surprised everyone this year with a resounding defeat of an anti-abortion constitutional referendum in August and the reelection of their Democratic governor over a Trumpist Republican in November, the middle of the country still is dominated by White people -- especially old White people -- who repeatedly send far-right Republicans to Washington and their state capitals.

Explaining why that has happened is far too big a task for a single column, so here I want to offer a short analysis addressing a related question: Why not just say, “F*ck ‘em!”?

Tuesday, December 06, 2022

Some Culture War Moments in the 303 Creative Oral Argument

 by Michael C. Dorf

Here on the blog last week, both Professor Segall (on Friday) and I (on Thursday) acknowledged that 303 Creative v. Ellenis--which pits a web designer's free speech against same-sex couples' statutory right against discrimination--presents some difficult questions. Yesterday's two hours and twenty minutes of oral argument in the case did little to make it much easier, even though some Justices (especially Alito, Gorsuch, and Kavanaugh) characterized the disagreement between the sides as fairly narrow. In a Verdict column tomorrow, I'll explore the costs and benefits of various ways in which the Court can try to decide the case without either gutting anti-discrimination law or effectively eliminating a right of expressive businesses to refuse to create works they deem odious.

In today's essay, I'll address a few side points raised during the argument, beginning with the not-so-subtle signaling by the web designer's lawyer--Kristen Waggoner, the CEO of Alliance Defending Freedom, an organization that litigates on behalf of conservative churches and religious organizations--where she stands in the culture wars.

Monday, December 05, 2022

Cognitive Bias, Rationality, and the Cost of a Ride on Lyft

by Neil H. Buchanan

Having written at length over the last few months about the looming political disasters that face us, I will use today's column to talk about something far less consequential, yet still (I hope) interesting.  The broad question for the day is how human psychological quirks are used in social and economic analysis.  The narrow question is why Lyft does not (seem to) have an option for non-a la carte purchases.  Is it possible, I ask with an almost-straight face, that "the market" is not completely efficient?  Gasp!

Friday, December 02, 2022

Of Free Speech, Non-Discrimination, and the Futility of Originalism

 By Eric Segall

Next week the Court will hear oral argument in 303 Creative LLC  v. Elenis. This controversy involves a wedding website designer who does not want to extend her services to same-sex weddings despite a Colorado law requiring her to do so. The case is a hard one because it pits important principles against each other: the right of the people to free expression against the state's interest in non-discrimination. Mike wrote a thoughtful piece about the case yesterday. 

The point I want to emphasize about this case is how useless originalism is to its resolution and that no one should pretend otherwise. To illustrate this futility, I will focus on an amicus brief (in support of the Court hearing the case) written by a number of all-star first amendment and originalist scholars including Michael McConnell, Richard Epstein, Mark Scarberry, Larry Alexander, Robert George, Steven Smith, and numerous other constitutional law heavyweights. If they can't show the relevance of originalism to this case, it is likely no one can. And, as shown below, they cannot.

Thursday, December 01, 2022

A Selective Preview of the SCOTUS Oral Argument in 303 Creative v Ellenis (Web Designer Claiming Free Speech Right Not to Promote Same-Sex Weddings)

 by Michael C. Dorf

Next week the Supreme Court will hear oral argument in 303 Creative v Ellenis, which poses the question that the Court ducked in the Masterpiece Cakeshop case in 2017: whether the application of a public accommodations law to a business owner who provides expressive goods or services violates the business owner's right to free speech where the goods or services convey a message of celebration of or support for same-sex marriage and the business owner opposes same-sex marriage? In Masterpiece Cakeshop the Court ducked the issue by deciding the case on the ground that members of the Colorado Civil Rights Commission expressed religious bias (a dubious interpretation of the record, in my view). Although 303 Creative also comes from Colorado, and although the plaintiff's certiorari petition sought review on issues of both religious liberty and free speech, the Court took the case to consider only the free speech issue. It's possible that the Court might avoid the issue again, this time on standing or ripeness grounds, but more likely we will get a ruling on the issue the Court ducked in Masterpiece Cakeshop.

Needless to say, with this reactionary Court, I'm not optimistic. The U.S. Court of Appeals for the Tenth Circuit ruled against the web designer plaintiff. I doubt that SCOTUS granted review simply to pat the Tenth Circuit on the back for a job well done. So while I hope Colorado wins this case, I expect Colorado to lose. Even so, it matters how Colorado loses almost as much as whether the state wins or loses. As I explained in a Verdict column after the oral argument but before the SCOTUS judgment in Masterpiece Cakeshop, a robust free speech right to resist public accommodations laws could fatally undermine anti-discrimination law.

In the balance of today's essay, I'll elaborate on a distinction I offered in that column. I'll also make some further observations about 303 Creative. And I'll write next week's Verdict column on whatever happens during the oral argument.

Wednesday, November 30, 2022

The Justices and the Absence of a Binding Ethics Code: More Reasons Why the Court is not a Court

By Eric Segall

For over thirty years, I have had numerous personal and professional relationships with state court and lower federal court judges. The vast majority of them take their ethical responsibilities seriously, especially when it comes to accepting gifts from people with interests before them and deciding whom they may socialize with if they fear people may be seeking to influence them. Various state and federal ethics codes bind these judges, but in my experience, most judges simply think it is part of the judicial role to avoid, what virtually all judicial ethics codes call the "appearance of impropriety." That standard is codified in the Official Code of Conduct rules applying to "United States circuit judges, district judges, Court of International Trade judges, Court of Federal Claims judges, bankruptcy judges, and magistrate judges." The federal judges not covered by this Code are, of course, the Justices of the United States Supreme Court.

Canon Two of the Official Code of Conduct says the following:

Canon 2: A Judge Should Avoid Impropriety and the Appearance of Impropriety in all Activities

(A) Respect for Law. A judge should respect and comply with the law and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.

(B) Outside Influence. A judge should not allow family, social, political, financial, or other relationships to influence judicial conduct or judgment. A judge should neither lend the prestige of the judicial office to advance the private interests of the judge or others nor convey or permit others to convey the impression that they are in a special position to influence the judge....

Again, it has been my experience that most judges abide by these rules not just because they have to but because a vital part of a judge's responsibilities is to avoid any public perception that they are beholden to special or private interests. Now let's talk about the Supreme Court of the United States.

Tuesday, November 29, 2022

The Pageantry of Casual Racism

by Neil H. Buchanan

This past weekend was the big rivalry week in American college football.  As in the past, I find myself unable to break the emotional hold that this corrupt and ugly game has on me, so I watched and watched and watched.  Whereas in the recent past I would be tempted to write yet another column defending amateurism and pointing out that scholarship athletes have never been "unpaid," however, the situation has now gotten so completely out of hand that there is no point.  This is bad all the way down.

So rather than discuss the fact that showering money on college players -- so openly that one "color commentator" spent several minutes during a game on Friday giving a star player unsolicited advice to  hold out for $7 million in "name, image, and likeness rights" from his university, to stop him from going to the NFL -- has not in any way fixed the deeply corrupt system (big surprise), I will focus on a different kind of ugliness.

Monday, November 28, 2022

The Challenge of Writing a Constitutional Law Exam in a History-Centric Regime

 by Michael C. Dorf

In a Verdict column last month, I decried the recent turn to history in SCOTUS cases involving unenumerated rights, firearms, and the Establishment Clause. I contended that, in these particular subject matter areas and as a general matter: history standing alone is too under-determinate to adjudicate contemporary constitutional controversies; therefore it will be used (as it was in recent cases) chiefly as a mask for decisions reached on ideological grounds; and unless the Justices are prepared to overrule just about all of their precedents, they will need some means of deciding when a case presents a novel question to be decided under the history-only rubric versus when a case presents a sufficiently interstitial question to call for the application of older precedents that are preserved per stare decisis.

The turn to history presents a further problem that I raise here only partly tongue-in-cheek. It poses a serious challenge to those of us who teach constitutional law: how to write a good exam question?

Wednesday, November 23, 2022

Is a Patently False Statement Necessarily a "Lie"? (A Thanksgiving Classic From Sherry Colb)

[N.B. The following blog post first appeared on the day before Thanksgiving, 2014. We'll be back with new content on Monday.]

by Sherry F. Colb

In my Verdict column for this week, I discuss the case of Warger v. Shauers.  Warger involves Federal Rule of Evidence 606(b), which prohibits, among other things, the introduction of juror testimony in an effort to undermine the validity of a verdict.  The petitioner, Gregory P. Warger, wants to introduce a juror's testimony about a fellow juror's comment during deliberations, not as itself an error affecting the verdict but instead as evidence that the latter juror materially lied during voire dire and should never have been seated on the jury.  In my column, I consider whether the petitioner's distinction -- between prohibited juror testimony about a fellow juror's improper statements during deliberations and permissible juror testimony about a fellow juror's disclosure during deliberations of lies during voire dire -- is tenable.

In this post, I want to explore the meaning of a deliberate "lie."  In Warger, the petitioner claims that one of the jurors lied during voire dire about her impartiality and ability to award damages if the plaintiff satisfied his burden of proof.  We know that she lied, argues the petitioner, because the juror revealed during deliberations that if her daughter had been sued for the accident for which she -- the daughter -- was responsible, the lawsuit would have destroyed the daughter's life.  The petitioner's inference is that this statement -- about the juror's feelings about the lawsuit -- demonstrated the falsity of the juror's claim of impartiality and willingness to award damages if appropriate.  Had the juror said during voire dire, "I am biased against plaintiffs because a plaintiff could have ruined my daughter's life," then the juror would have been successfully challenged for cause and accordingly precluded from serving on the jury.

Though there is room for quibbling, I am prepared to concede to the petitioner that the juror's statements about her daughter are logically inconsistent with her prior claim to be unbiased.  Does this mean, however, that the juror was necessarily lying?  Was her claim of objectivity comparable to a claim she was childless, even though she in fact has a daughter, as revealed by her comment during deliberations?  I think not.

Tuesday, November 22, 2022

The Impossibility of Principled Originalism

 By Eric Segall

Last week on this blog, Mike talked about how the leadership of the Federalist Society asked its co-founder Professor Steven Calabresi to not identify himself in that way when advocating certain legal positions concerning the so-called independent state legislature doctrine the Court is going to address later this term. In his final paragraph, Mike wrote the following:

The Fed Soc website proclaims the 'duty of the judiciary to say what the law is, not what it should be.' Evidently, it also includes an implicit exception: unless what the law is doesn't align with the ideological druthers or institutional interests of the Republican Party; then it's the duty of the judiciary to pretend the law is what we wish it were.

Of course, we all know that the Federalist Society leadership is not interested in real judicial engagement with text and history but with political results they favor. But what about the judiciary and the legal academy? Is it possible to be a principled originalist? The answer, given today's strong culture of judicial supremacy, is simply no.

Monday, November 21, 2022

Two Oddities in the Respect for Marriage Act

by Michael C. Dorf

Last week, the Respect for Marriage Act (RMA) cleared the very substantial hurdle of a Senate cloture vote. Its passage now seems assured. Even if some of the Republican Senators who voted for cloture don't vote for the bill itself, it will surely garner majority support in the chamber. It will then go back to the House to vote on the amended version, and then to President Biden for signing.

Is that a big deal? As I explain in my latest Verdict column, in the short run the RMA doesn't do anything, because the SCOTUS ruling in Obergefell v. Hodges protects same-sex marriage as a constitutional right. But as I also explain in the column, there is at least some reason to fear that the SCOTUS conservative super-majority might overrule Obergefell. I don't think that's likely, mainly on legal realist grounds; however, I don't find the reassurances that Justice Alito offered in Dobbs v. Jackson Women's Health very reassuring.

My Verdict column describes what the RMA does: (1) repeals the Defense of Marriage Act; (2) forbids states from refusing to recognize interracial and same-sex marriages from other states; (3) provides that federal law will treat as married people who are married under state law; and (4) in the version that's pending in the Senate though not the original House version, exempts religious non-profits from any obligation to provide goods or services to celebrate weddings they disapprove on religious grounds.

The key language in the RMA forbids state actors from denying recognition "to a marriage between 2 individuals, on the basis of the sex, race, ethnicity, or nation origin of those individuals." The federal definition provision (in the version pending in the Senate) also contains the "2 individuals" proviso (twice). In the balance of this essay, I want to discuss two oddities of that language: (A) the use of the word "sex" to somewhat obliquely invoke same-sex marriage; and (B) its rejection of plural marriage via the use of "2."

Friday, November 18, 2022

Joan Didion's Blank Notebooks, Eleanor Roosevelt's Andirons, and the Appeal of Tangible Artifacts

by Michael C. Dorf

Until a couple of weeks ago, I hadn't much ventured into the literature of grief, mostly because I wasn't sure I could handle it yet. But I knew what would be first on my list: Joan Didion's The Year of Magical Thinking. Didion was a wonderful writer whose ironic yet realistic sensibility I deeply appreciate, so I took the plunge. The book--which recounts the year after her husband (author John Gregory Dunne) died of a sudden heart attack--spoke to me.

The Year of Magical Thinking takes its title from a number of episodes, most centrally Didion's inability to give away her late husband's shoes because he would need his shoes if he were to come back to life. I know exactly how she felt. It's not that you believe your dead husband or wife will return. It's not even  denial as a stage of grief. It's more a kind of disorientation. You see the familiar objects and they bring to mind their departed owner, which reminds you they're gone, which surprises you, because you didn't think you had forgotten. Indeed, much of The Year of Magical Thinking involves Didion finding herself in familiar places and remembering long-ago incidents, noting how sometimes, but not often, these flights of fancy take her away for a few minutes from consciously thinking about her husband's absence or, in the memoir's other tragic plot line, her daughter's grave illness.

Yet if Didion's attachment to her late husband's shoes makes perfect sense, what are we to make of the value perfect strangers place on Didion's own belongings, including ephemera seemingly wholly lacking in sentimental value? This week her estate held an auction. As Danielle Cohen observes at The Cut:

Two sets of blank (blank!) notebooks went for $11,000 each. A stained pair of leather trash baskets were auctioned off for $5,500. One lucky (?) soul coughed up $7,000 for the collection of beach trash that once sat on Didion’s mantel.

Admittedly, the proceeds go to charity, and I suppose that the purchasers of these items could thus rationalize that they were doing good, but it remains a mystery why they wanted these items at all. Instead of paying $11,000 for a blank notebook once owned by Joan Didion, why not donate $10,985 to charity and buy a copy of The Year of Magical Thinking for $15. If you already have a copy (and what Didion fan willing to spend $11,000 for random memorabilia doesn't own all her books?), you can give this new copy as a gift.

Thursday, November 17, 2022

Blaming the Victims in America's Crisis of Democracy

by Neil H. Buchanan

There might not be much more to say about the 2022 midterm elections, although I do believe that the most important fact about our current situation -- that Democrats lost the House because of gerrymandering, full stop -- has been almost completely missed by the usual suspects.

In any case, now that everyone is turning their attention to 2024, it is somewhat surprising that there was an almost ho-hum attitude in the press about Donald Trump's official confirmation of the obvious: that he is running for president again.  I knew that he had been hyping an official announcement on Tuesday, but I was not near a screen during his speech, and when I opened the apps for the The New York Times and The Washington Post at about 11am on Wednesday morning, reports on Trump's event were something like ten or twelve stories down the page.

That does not mean that people will continue to ignore Trump, and it definitely does not mean that someone else will be the Republican nominee in 2024.  Even so, this was indeed a surprise -- and a pleasant one at that, especially in light of my Verdict and Dorf on Law columns yesterday arguing that any not-Trump Republican nominee is less likely to end US democracy than Trump is.  (Not unlikely, just less likely.)

With 2022 out of the way, then, attention should turn to whether the rule of law in the United States will survive past 2024.  Things are off to a bad start, however, given that the editorial board of The Times (as I noted yesterday) has already decided to pretend that dangerous Republican presidential aspirants are non-dangerous and "have demonstrated a commitment to the rule of law and an ability to govern."  There is evidently no bottom to the well of studied obliviousness from which the respectable press draws.

In any event, I want to make this column relatively short, focusing on two particularly galling arguments from the non-Trump right that blame Democrats for "putting democracy on the ballot."

Wednesday, November 16, 2022

The Least Likely Candidate to Win (Trump) Is the Most Likely to End Democracy, But Any Republican Could Do It

by Neil H. Buchanan 

"When the facts change, I change my mind - what do you do, sir?"  Even though John Maynard Keynes might not have uttered that sentence, it is a memorable and pithy way to say that we should be open to updating our beliefs if new evidence or arguments arise.  Fair enough.  And having quoted myself (accurately) dozens of times arguing that the United States is a "dead democracy walking," last week's midterm results offer an important opportunity to look anew at this country's political mess.

After reassessing the situation, I sadly conclude that we are still almost certainly f*cked, but whereas I previously said that I merely hoped that a way out might emerge, I am now revising my assessment to say that there might finally be realistic, non-wishful reasons to believe that the country and the world could be spared an American descent into fascism.  Again, the worst outcome still seems very likely, but certainly less so than it did eight days ago.

Let us count the ways that things have changed and not changed.

Tuesday, November 15, 2022

Justice Thomas Goes Silent Again--At Least For One Election Denier's Case

by Michael C. Dorf

Scorning the tendency of some Republican appointees to succumb to what was once called the "Greenhouse effect,"--whereby they proved more moderate than expected or even liberal--Justice Clarence Thomas famously told his law clerks, "I ain't evolving." The quip captured two related sentiments: first, that Thomas was a committed conservative rather than a wobbly one or a closet liberal; and second, that he was unconcerned about what elite coastal liberals thought. The Greenhouse effect was after all, based on the hypothesis that the likes of Sandra Day O'Connor and Anthony Kennedy cared what Linda Greenhouse wrote about them in The New York Times.

Both sentiments expressed by Justice Thomas were well justified and have proven true over time. Today's essay will focus on the second point, harnessing evidence from an order the Court issued yesterday in Ward v. Thompson.

In that order, the Court, without opinion, denied an application for a stay and an injunction presented by Kelli Ward, the chair of the Arizona Republican Party, one-time fake elector for Donald Trump, and the object of a subpoena from the January 6 Committee for phone records. (The subpoena went to her mobile phone carrier, but she sought to block compliance.) For more background on the substance of the dispute, I recommend Amy Howe's explainer on SCOTUSblog.

Monday, November 14, 2022

Federalist Society Tries to Cancel its Co-Founder

by Michael C. Dorf

In a few weeks, the Supreme Court will hear argument in Moore v. Harper, which presents the Justices with their first opportunity to give plenary consideration to the independent state legislature (ISL) theory, according to which state legislatures can make and change laws governing congressional and presidential elections, independent of their state constitutions, state courts, and in the most aggressive version of ISL, of the governor. ISL is ahistorical and a potentially grave threat to democracy. Even as many Republicans grow weary of Donald Trump--not, mind you, because he is a lying, cheating, racist, sexist, evil man, but because he is bad for their political brand--Trump and Trumpism remain a very real threat to the continued existence of American democracy. His expected announcement tomorrow night of a third presidential run underscores the threat. Should SCOTUS endorse ISL in Moore v. Harper, Trump will have a path back to power that does not depend on his winning the Electoral College as it has traditionally acted, much less winning the national popular vote.

But this is not an essay about ISL, Moore v. Harper, or Trump, at least not directly. Rather, today I want to talk a little bit about what happened after a scholar with impeccable conservative legal credentials joined a brief disputing ISL and otherwise disagreeing with the orthodoxy on issues that the Federalist Society definitely does not insist upon.

Friday, November 11, 2022

That the Democrats Came Close Does Not Change Anything

by Neil H. Buchanan

So, you say there were some elections in the United States earlier this week?  How did that go?  As I wrote here on Election Day, we knew that tens of millions of people would vote for Republicans who are in the process of trying to turn America into a one-party state, while tens of millions of others (roughly half of all registered voters, it turned out) would not show up to vote against the party of insurrection.  That was an easy prediction, and it was accurate.

Most observers also made what they thought was an easy prediction, which was that Democrats would be wiped out in this election cycle.  They were wrong.  The post-election group-navel-gazing has almost entirely involved marveling at how relatively well the Democrats did, with grand pronouncements from the usual pompous asses that "the fever is breaking" amid discussion that maybe American democracy is not in as much danger as we thought.

Sadly, that is nonsense.  I agree with Professor Dorf's analysis on Wednesday that there is nothing meaningful or helpful about the Democrats covering the spread.  Or, to change the gaming metaphor, there is no "second-place money" in a winner-take-all pot.

I will have more to say about that below, but I will take a moment first to advertise my new two-part Verdict column, "Political Violence in the United States."  In today's second part of that column, I note with some gratitude that the worst-case scenarios of widespread violence in this year's elections has not played out.  There is still time for that to go sideways, but violence avoided is violence avoided, and that is good as long as it lasts.

Here, I want to explain a bit more why I agree with Professor Dorf's conclusion that this was still a terrible week for the country (and the world), and I will add some thoughts about how it all happened.

Thursday, November 10, 2022

SCOTUS Ponders Indian Tribes, Foreign Nations, Race-Based Classifications, and Vegans

 by Michael C. Dorf

Yesterday the Supreme Court heard oral argument in Haaland v. Brackeen and various consolidated cases. They collectively present constitutional challenges to the Indian Child Welfare Act (ICWA), a federal statute that in various respects supersedes state family law regarding foster care placements and adoptions of children who are members of federally recognized Indian tribes. Three main constitutional issues are presented: whether (1) ICWA falls within the scope of Congress's so-called plenary power over relations with and regarding Indian tribes; (2) whether the obligations that ICWA places on state and local child welfare agencies constitute unconstitutional commandeering of the state; and (3) whether ICWA obligates state courts (and/or other state actors) to use a suspect racial classification, thus triggering (and failing) strict scrutiny. In addition, there are threshold questions of standing, especially with respect to the state of Texas, which is the petitioner in one of the consolidated cases.

In today's essay, I'll focus chiefly on the third question, and in particular on an issue that seemed especially important to Justices Kavanaugh and Barrett during the oral argument: what to make of the "third preference" of a key provision of ICWAA declaratory provision of ICWA states that in addition to protecting the integrity of Indian tribes, ICWA's substantive requirements aim "to protect the best interests of Indian children." Nonetheless, no one disputes that where ICWA applies, it partially displaces the "best interests of the child" tests that state family courts routinely apply in cases that do not implicate ICWA. The key provision states the following adoption placement preferences:

In any adoptive placement of an Indian child under State law, a preference shall be given, in the absence of good cause to the contrary, to a placement with (1) a member of the child’s extended family; (2) other members of the Indian child’s tribe; or (3) other Indian families.

Justices Kavanaugh, Barrett, and others were especially concerned about preference (3) because it seems inconsistent with the argument advanced by the federal government (through Deputy SG Ed Kneedler) and tribal parties (through attorney Ian Gershengorn) that ICWA employs a permissible political classification, not an impermissible racial classification. After all, while membership in a Sioux tribe can be analogized to citizenship in a foreign country, the third preference treats membership in any Indian tribe as the basis for an adoption preference with respect to any other Indian tribe rather than to non-Indian adoptive parents. The analogy to foreign sovereigns seems to break down if adoptive parents who are members of, say, the Navajo Nation in Arizona are given priority over a non-Indian couple in Florida with respect to the adoption of a child who is a member of the Seminole Tribe of Florida.

Wednesday, November 09, 2022

Maybe Democracy Was The Friends We Made Along The Way

by Michael C. Dorf

As I hit publish this morning, we do not know the full results of the voting that ended yesterday. However, it appears likely that, even though Republicans substantially underperformed relative to expectations, they will end up gaining control of the House of Representatives by a modest margin. As of the early morning on November 9, the NY Times Needle gave Republicans an 83% chance of winning the House.

If Republicans can flip seats in two of the remaining too-close-to-call Senate races, they will gain control of the Senate as well. At this point, Arizona, Nevada, and Georgia look like the battlegrounds for this 2-out-of-3-wins contest. In the event that Senate control turns on the outcome of what now looks very likely to be a Georgia runoff (again!), we on the blog will discuss that race in the coming month (presumably including coverage by our in-house Atlanta-based Prof Segall).

What are the takeaways? I'll leave the fate of election deniers in state races for another day. For now, let's talk about Congress.

Tuesday, November 08, 2022

It's Election Day: What in the World Are People Thinking?

by Neil H. Buchanan

My duties at the University of Florida include being the law school's Director of Global Scholarly Initiatives, which requires that I spend each Fall semester researching in a foreign country.  This Fall's home base has been Vienna, where there was a national election last month.  That election was completely unremarkable by 21st Century standards, with the Austrian neo-fascist right (the local version of Marine Le Pen's bloc in France) losing in a landslide to the center-left (former Green Party) president.  Election Day was barely noticeable, and other than very standard campaign posters (head shots of candidates above short slogans), one would not have known from walking around the city that anything was happening.

And then there is the United States.  Via the interwebs, I have been staying on top of the situation in my home country, where the situation looks quite grim.  I will write a column soon about political violence (and the likelihood thereof) in the US, but here I want to focus not on what might happen because of these midterms but on the mindset of people who are not voting against Republican candidates in today's elections.

To be clear, "not voting against Republican candidates" can mean either not voting for Democrats or not voting at all, which in turn means that there are at least two types of thought processes involved: (1) "I affirmatively choose to vote for this Republican," and (2) "I'm not going to bother voting."  In some contexts, that difference would matter quite a lot, because of course people can have only one or a small number of reasons to actively vote for Republicans but many reasons to be passive.

Here, however, I think that there is a surprising convergence between those two choices, because the stakes in this election are obviously so high -- and because President Biden and the Democrats have been very clear about what those stakes are.  When they have said that "democracy is on the ballot" or warned of a "path to chaos," they have been refreshingly blunt, and it becomes much more difficult to see how people can say, "meh, whatever," while choosing not to vote.  That non-vote seems more active and less passive.

In any case, I do think it is important to think about what might be going through people's minds when they have every reason to know that Republican success in these elections will lead quickly and inexorably toward high-impact disasters.  What are people thinking?  Or, to put the point more clearly: What are people thinking?

Monday, November 07, 2022

Should District Judges Appoint Historians as Neutral Experts? The Legislative Fact Problem

by Michael C. Dorf

Here on the blog last week, Professor Segall's critique of originalism referred to a recent order issued by U.S. District Judge Carlton W. Reeves in a case presenting the question whether the federal proscription of possession of firearms by felons unconstitutionally infringes the Second Amendment. Judge Reeves asked the parties to address the question whether to appoint a historian as a "consulting expert" to provide objective evidence.

Arguably Judge Reeves was simply trolling the Supreme Court. Consider that his explanation for why he felt ill-equipped to perform the historical analysis demanded by Justice Thomas's majority opinion in NYS Rifle & Pistol v. Bruen relied chiefly on Justice Breyer's dissent in that case. Judge Reeves pointedly added that judges "are not experts in what white, wealthy, and male property owners thought about firearms regulation in 1791." Zing!

Whether or not Judge Reeves was just trolling Justice Thomas, his question raises an important issue that the Supreme Court has, so far as I can tell, never resolved: how to resolve questions of what lawyers call "legislative fact." In today's post, I'll sketch the problem and discuss a solution proposed in the leading scholarly treatment of it--a 2016 article by NYU Law Professor Kenji Yoshino in the William & Mary Law Review.

Thursday, November 03, 2022

Originalism as Dangerous Nonsense

 By Eric Segall

In my 2018 book Originalism as Faith, after canvassing numerous different and often conflicting forms of originalism, I argued that many originalists hold on to the idea that text and history should be used by judges to resolve hard constitutional cases because they could not accept the realist critique that the Supreme Court's decisions are ideology or values all the way down. I also suggested that on the ground originalism did very little work in generating decisions by courts and that the theory was mostly an after-the-fact rationalization for decisions made on other grounds. 

With the addition of three alleged originalists to the Supreme Court and a host of so-called originalists on the lower courts, we have now seen much more originalism in action that we saw prior to 2018. The pinnacle of this movement came last June in New York Pistol & Rifle Ass'n. v. Bruen, in which the conservatives signed an opinion by Justice Thomas instructing courts to undertake a comprehensive review of history to determine if Second Amendment restrictions are “consistent with the Nation’s historical tradition of firearm regulation.” The Bruen Court made clear that judges should not take into account policy concerns when reviewing the constitutionality of gun legislation. 

Tuesday, November 01, 2022

If Only the Democrats' Internal Debate About Focusing on Social or Economic Issues Were Interesting or Useful

by Neil H. Buchanan

One of the most predictable debates in any campaign season pits the Democrats who want to focus almost exclusively (or even entirely) on so-called kitchen table issues against those who want to spend some amount of time talking about social issues that are purportedly non-economic.

Careful readers of the previous sentence surely noticed that although I called this debate predictable, I described it in a relatively unusual way.  First, the Democrats who express concern about social issues do not -- and never have -- been absolutists about their side of the debate.  People who want to talk about racism, sexism, and other such issues have always been willing to say that of course standard economic issues are important and must be considered, asking only for some consideration of issues that affect marginalized groups (groups that add up to more than half of the population, even when only gender is considered).  Meanwhile, those on the other side of the Democratic debate are at best only grudgingly willing to say that it is OK to talk about non-economic issues in very limited circumstances, and as little as possible.

Second, in describing social issues as "purportedly non-economic," I am trying to remind everyone -- primarily myself, to be honest -- that the consequences of our ongoing problems with racism, sexism, and similar matters very much include dollars-and-sense outcomes for marginalized groups.  Yesterday's Supreme Court argument about affirmative action is higher education is one obvious example, but we need only consider the perverse combination of Republicans' insistence on women (including poor women) carrying fetuses to term but then refusing to help those new mothers with the costs of rearing children.

I want to be clear, then, that the framing that we usually see in the press -- progressives want to talk about social issues, but others want to talk about family budgets -- is both inaccurate and damaging.  Moreover, it is damaging in a predictably anti-progressive direction, as it allows supposedly "realistic" pundits and reporters to make it seem that social issues are mere special interests that distract from a winning campaign formula and alienate mythical swing voters.

After describing a nuance about the Democrats' never-ending internal debate (which the press loves to stoke), I will note an aspect of the debate that seems to contradict my progressive presumptions.  Exploring that issue will highlight what is truly at stake when we talk about social pathologies that harm people in very different ways.

Donor, Legacy, and Athlete Preferences in Higher Education Admissions: Art Museum and Squash Edition

 by Michael C. Dorf

During the oral arguments in the University of North Carolina and Harvard affirmative action cases, various of the conservative Justices pushed the programs' defenders on what race-neutral steps the colleges had been taking to achieve greater student-body diversity (in particular to boost enrollment of African American, Latinx, and Native American students). These Justices appeared to accept the argument by the lawyers for Students for Fair Admissions (SFA) that the Constitution and Title VI contain a kind of exhaustion requirement: before colleges may use race as a plus-factor in admissions, they must exhaust race-neutral means of achieving racial diversity.

Much of the discussion on this point focused on admissions preferences for varsity athletes (A), legacies (L), children of large donors (D), and children of current university faculty and staff (C), collectively abbreviated as ALDC preferences. The record with respect to ALDC preferences was stronger for SFA in the Harvard case than in the UNC case, so I'll focus on Harvard. In so doing, however, I should note that the record is hardly strong for ALDC, even in the Harvard case. Defending Harvard, attorney Seth Waxman noted that simply eliminating affirmative action would lead African American enrollment at Harvard to decline from 14 to 6 percent, while also eliminating ALDC preferences would lead to a further decline to 5 percent. So the attack on ALDCs looks like a non sequitur.

Monday, October 31, 2022

Top Ten Observations About the Affirmative Action Oral Arguments

 By Eric Segall

Here are my top ten observations (in no particular order) about the affirmative action oral arguments from Monday.

1) No one seemed to care that the University of North Carolina is only 8% Black in a state where Blacks make up 21% of the population. These facts seem important to me.

2) Justice Gorsuch really, really hates the sport of squash. If you didn't listen, don't ask.

3) No one seems to care that the Massachusetts legislature is only 2% Black while the state is 9% Black. These facts seem important to me.

4) The conservative Justices asked almost no questions about the original meaning of either the 14th Amendment or Title VI. I think we all know why.

5) The conservative Justices seemed obsessed about the statement by Justice O'Connor in Grutter v. Bollinger that she expected affirmative action to not be needed in 25 years. At my law school a few years ago, she said unequivocally she meant that sentence as aspirational and that too much has been made of it. All smart people knew this already.

6) Justice Jackson may already be the best questioner on the Court.

7) The liberal justices made convincing arguments that there are no reasonable race-neutral alternatives to taking race into account in university admissions. All smart people knew this already.

8) There was almost no discussion of stare decisis despite the fact that one of the questions presented was whether Grutter should be overruled. I think we all know what that means.

9) For some reason, Justice Kavanaugh asked why Harvard does not have a box where people can show their religion. I guess the reason might be that this Court feels religious discrimination is more of a problem than racial discrimination in today's America. That belief is insanely wrong, 

10) None of the Justices did a good job of establishing that institutional racism is still a major problem in America and that is one reason affirmative action is still badly needed. I detailed this racism here.

Bonus Point: Despite five hours of give and take, we all know the Court is going to end affirmative action. When they do so, the opinion will be mostly policy despite the Court telling us last term in the abortion and gun cases that policy concerns should be irrelevant to constitutional interpretation. In other words, text and history for me but not for thee.

Title VI Versus Equal Protection in Today's Affirmative Action Cases

by Michael C. Dorf

The two challenges to race-based affirmative action that the Supreme Court will hear today mostly overlap, but two factors distinguish them from one another. First, a full complement of nine Justices will participate in the University of North Carolina case, while only eight Justices will participate in the Harvard case (because Justice Jackson has recused herself). Second, UNC is bound by both the Fourteenth Amendment's Equal Protection Clause and Title VI of the 1964 Civil Rights Act, whereas Harvard is bound only by Title VI. Here I want to focus on that second factor. Much of the attention to the cases (including by me in my post on Friday) has focused on the constitutional issue, presented in only the UNC case. But the Court could avoid saying anything about the Constitution by ruling that the statute forbids race-based affirmative action.

Here's the key language of Title VI: "No person in the United States shall, on the ground of race, color, or national origin, be . . . subjected to discrimination under any program or activity receiving Federal financial assistance." In the Bakke case, Justice Powell's controlling opinion concluded that Title VI is coextensive with equal protection. On this point, Powell spoke for the Court, as he was joined by the four Justices (Brennan, White, Marshall, and Blackmun) who would have upheld UC Davis Medical School's admissions program against Bakke's challenge.

Accordingly, as a matter of precedent, there is no separate issue under Title VI. Harvard and other private colleges and universities face the same federal legal limits on the use of race in admissions as UNC and other public colleges and universities do. So why am I drawing a distinction?

For the fairly obvious reason that in each case, the first certiorari question is whether the Court should overrule Grutter v. Bollinger, the 2003 case in which the Court sustained the University of Michigan Law School's affirmative action program on the strength of and applying the rationale of the Powell opinion in Bakke. If the Court is willing to overrule Grutter--and let's face it, the Court's composition and the fact that it granted cert in the two cases strongly suggest it is--then it may also be willing to overrule the equation of Title VI with equal protection.

Friday, October 28, 2022

Federal Exceptionalism and the Fourteenth Amendment's Framers' Intent

 by Michael C. Dorf

My latest Verdict column criticizes the recent turn to history by the SCOTUS conservative super-majority on a number of grounds, some of which will be familiar to readers who follow debates over originalism and constitutional interpretation but one of which I believe is at least somewhat novel. I explain that there is the potential for the Court either to destabilize nearly all of constitutional law or else merely shift the terms but not the substance of the debate. Here's the core of the argument:

[T]he shift to a history-alone approach creates a boundary problem. If old precedents using other methods are presumptively preserved via stare decisis but new cases will be decided using the history-only method, one must have some further method for distinguishing old from new. That itself is a tall order, because lawyers typically do not ask for a brand new rule of law. Instead, they contend that the court should simply apply an existing rule or standard in a slightly new context.

There's more to that argument, of course, so I suggest that readers who are intrigued (or even mildly interested!) check out the full column. While doing so, they will note that in the course of recounting more familiar critiques of originalism, I point to self-described originalists' failure to apply their methodology consistently when doing so could lead to results they strongly oppose on ideological grounds. My chief example concerns evidence that the framers of the Fourteenth Amendment did not regard what we would now call affirmative action as inconsistent of their egalitarian principles. I made a more expansive version of the point on the blog in the context of unpacking (and worrying over) Justice Jackson's seeming endorsement of originalism in the recent oral argument in the Voting Rights Act case from Alabama. In the balance of today's post, I want to respond to a counter-argument I have sometimes encountered (including in correspondence from a reader of that earlier blog post).

The evidence cited in my earlier post shows that the same Congress that proposed the Fourteenth Amendment also adopted laws that conferred benefits specifically on African Americans so designated by race. The counter-argument to which I want to respond now begins with the fact that the Fourteenth Amendment's Equal Protection Clause applies to states and their subdivisions (i.e., local governments) but not to the federal government. Thus, the counter-argument continues, the adoption of race-specific measures by the Reconstruction Congress does not tell us much if anything about what the members of that Congress thought equal protection meant, because nothing they enacted at the federal level could run afoul of the Fourteenth Amendment.

Now onto my response.

Thursday, October 27, 2022

Conservatives' Economic Talking Points Are Invariably False All-or-Nothing Choices

by Neil H. Buchanan

We have all become accustomed to Republicans’ increasing willingness simply to lie about the world.  Claiming that Critical Race Theory is taught in the schools (which they supplement with the absurd sub-lie that kids are being indoctrinated to "hate" themselves for being White) and that abortions are performed as late as the moment of birth are only two of the most commonly repeated lies.  And of course, literally hundreds of Republican candidates for office this year refuse to admit that the 2020 election was free and fair and that their side lost.

Even so, it is worth remembering that some of the more common deceptions in the Republican playbook are not direct factual misstatements but instead rely on a completely nuance-free insinuation that everything is an all-or-nothing choice.  Either you are in favor of the Iraq War or you "hate America."  Either you want to throw every brown-skinned person out of the country or you favor "open borders."  Either you want to turn every police department into a mini-Navy SEALS team, or you "don't back the blue."  Either you want the government to execute people in your name or you "want to let murderers loose."

Those examples are all transparently false, but others are less so.  Here, I will look at three of American conservatives' favorite talking points about economic issues -- Fed-bashing, the Laffer Curve, and the Confidence Fairy -- and show that each of these endlessly repeated articles of faith boils down to a false all-or-nothing choice.  Once viewed in this way, it is in some ways tempting to see the Republican worldview as an impressive edifice.  Completely dishonest, sure.  But impressive.

Wednesday, October 26, 2022

Am I Going Too Easy on the Fed?

by Neil H. Buchanan

Two weeks ago, when former Federal Reserve chair Ben Bernanke won this year's faux-Nobel in economics, I wrote: "How Did We Luck Out at the Fed?"  Bernanke had always been a reliably orthodox conservative economist, with all of the standard credentials that would make him an obvious choice by a Republican president to run the nation's central bank.  When George W. Bush tapped Bernanke in 2006, the choice was not depressing but certainly counted as uninspired.  My column, however, argued that Bernanke had ended up being a brilliant Fed chair.

History sometimes confronts people with opportunities for greatness or catastrophic failure, and the global financial crisis of 2008-09 allowed Bernanke to prove that he was neither a hack nor an ideologue.  That was our good luck, because there are plenty of people who have served in that position (and others who were surely on Bush's short list when Bernanke was chosen) who would have made horribly wrong decisions.  It took a truly bold mind to violate hard-money orthodoxy by pouring money into the economy when it absolutely needed it -- even as the usual suspects were screaming about currency debasement and all the rest -- and to keep interest rates at or near zero for years on end.  To the extent that we have had any economic success in the last sixteen years -- and we have, although it has been far too unequal in its effects on real people -- it all began with Bernanke.

I wrote my column two weeks ago to note that the Fed has been a haven of sanity in an increasingly degraded policy and political environment in the US.  In 2014, after Bernanke had served two full four-year terms, Barack Obama replaced him with Janet Yellen (now Joe Biden's Treasury Secretary), and Donald Trump then replaced her (because everything Obama-related had to go) with Jerome Powell, who still serves as Fed chair today.

But has the Fed truly been as good as I claimed in my recent column?  And even if the answer to that question is yes, is the Fed making a mistake now?  If so, the Fed might be needlessly dooming millions of Americans (and people in other countries, for that matter) to lose their jobs, their houses, and possibly their families.  Sadly, I think the answer is yes.  The Fed might feel that it has no choice but to slam on the brakes to try to reduce inflation, in the tough-love kind of approach that monetary policy types always applaud, but it might end up simply inflicting pain gratuitously.

That does not necessarily mean that Powell and the other Fed policymakers know that they are causing pain with no gain, which means that when I say that they might be "simply inflicting pain gratuitously," I am not saying that they are being deliberately callous.  They might simply be wrong.  But they do know that they are causing pain.  The only question is whether they are right that it will have been worth it.

Again, I am not so sure.

Tuesday, October 25, 2022

Abortion, Guns, Affirmative Action and Fake Textualism and Federalism

By Eric Segall

Last June in the Dobbs decision, the Supreme Court gave the American people a firm lecture on the importance of textualism and states' rights. The majority opinion written by Justice Alito repeatedly argued that, because the right to terminate a pregnancy is not in the Constitution's text and was not protected as an original matter in 1789 or 1868, the difficult issue of abortion should be left to the states. Justice Alito wrote the following:

Abortion presents a profound moral issue on which Americans hold sharply conflicting views.... For the first 185 years after the adoption of the Constitution, each State was permitted to address this issue in accordance with the views of its citizens. Then, in 1973, this Court decided Roe v. Wade.... Even though the Constitution makes no mention of abortion, the Court held that it confers a broad right to obtain one. It did not claim that American law or the common law had ever recognized such a right.

The plaintiffs and amici in Dobbs argued that the right to terminate a pregnancy is closely related to other unenumerated rights the Court had recognized in the past, such as the right of adults to refuse unwanted medical treatment, the right to use contraception, and the right to same-sex marriage. In response to those arguments, the Dobbs majority said that those and other non-textual rights were different because abortion destroys "fetal life" or an "unborn human being." The majority concluded the following:

It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives. The permissibility of abortion, and the limitations, upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting. That is what the Constitution and the rule of law demand.  

Before turning to guns and affirmative action, it is important to recognize that as a matter of internal critique, Dobbs fails badly. Others have criticized Alito's misuse of history but I want to focus on his textual conclusions. He did not deny the existence of non-textual fundamental rights such as the right to contraception and the right to control one's own body. The difference he said, as noted above, is that those rights don't involve the destruction of a fetus or an "unborn human being." 

Monday, October 24, 2022

Standing, Merits, and Politics in the Legal Challenges to Student Loan Forgiveness

by Michael C. Dorf

On Thursday, Justice Barrett swiftly and rightly rejected the emergency petition by Wisconsin taxpayers challenging President Biden's student loan forgiveness plan. The petition was procedurally absurd. It claimed that the taxpayers had standing because by forgiving debts owed to the federal government, Biden would increase the federal deficit, which in turn would require more revenue to close the gap, which in turn would increase their tax liability.

The main difficulty with this theory is that the Supreme Court long ago rejected the idea that taxpayers have standing qua taxpayers. (That's different from challenging a tax one claims is itself illegal, although even then, a federal statute requires one to pay the tax and then sue for a refund in the tax court.) There's an exception to the no-taxpayer-standing rule that allows for taxpayer standing to challenge direct expenditures alleged to violate the First Amendment's Establishment Clause, but in recent years the Court has narrowed that exception nearly to the vanishing point, and, in any event, the Wisconsin challengers did not allege anything resembling an Establishment Clause violation. Instead, their petition said that "no Supreme Court decision has slammed the door on application of [the exception to the no-taxpayer-standing rule] outside of the Establishment Clause context."

That's wrong, but even if it were right, it would hardly have entitled the Wisconsin taxpayers to an emergency order, which requires, among other things, a showing of a likelihood of success upon full consideration; the fact (if it is a fact, which it isn't) that current precedent does not completely foreclose a claim hardly means that the claim will likely succeed.

Accordingly, Justice Barrett was right to reject the petition without first referring it to the full Court. Under Supreme Court Rule 23.4, the petitioners still have the option of going to a second Justice of their choosing. (They went to Barrett first because she's the 7th Circuit Justice, but they can go to any Justice second.) But if that second Justice follows the law, he (let's be realistic, they're not going to Sotomayor, Kagan, or Jackson) should also swiftly deny the petition.

So the case as presented to SCOTUS was a loser. But the Wisconsin case is not the only challenge to the loan forgiveness plan. Barely was the (electronic) ink dry on Justice Barrett's rejection of the Wisconsin case when, on Friday, the Eighth Circuit issued what it misleadingly called an "administrative stay" but was actually a temporary injunction against implementation of the debt forgiveness program pending briefs due later today and tomorrow. That order came in a case brought by Nebraska, Missouri, Arkansas, Iowa, Kansas and South Carolina. The district judge dismissed it for lack of standing, but presumably the appeals court thinks the states could have standing and a good chance of winning on the merits. After a few more preliminaries, I'll say something about those underlying merits and about the political/ideological stakes.

Friday, October 21, 2022

The Predecessors and Aftermaths of Dobbs: From Movements to Courts to Movements

by Sidney G. Tarrow

When, on June 24th, the Supreme Court effectively liquidated Roe v Wade, scholars of social movements and abortion rights shook their heads – but not in disbelief. Though most of them assuredly abhorred the decision, it dovetailed neatly with the dominant theorization of the relations between courts and movements. The Court –the  theory goes – was reflecting the triumph of a “long movement” – one that went back to the reaction to Roe and its amplification of a movement reflected in rightwing organizations like the Federalist Society and the realization of conservative politicians like Ronald Reagan that they could win by embracing the agenda of the Christian Right. “You cannot support me,” Reagan famously said to his Christian conservative listeners; “But I can support you!”

Echoing a point she made in a law review article she co-authored with Robert Post a decade and a half earlier and writing in the Washington Post the day after Dobbs was officially handed down, Reva Siegel wrote of the originalist movement that led to the defeat of Roe:

Reversing Roe has been the animating goal of the conservative legal movement since it mobilized under the banner of originalism during the Reagan administration. Far from setting aside politics in favor of a neutral interpretation of law, Alito’s decision reveals how conservative judges encode movement goals and values under cover of highly selective historical claims.

The thinking of scholars like Siegel about movement-inflected court decisions of course goes back to the Brown decision. That case sparked controversy over whether and when movements can effectively bring about policy change through litigation strategies. Some argued that the decision to end school segregation was the result of the efforts of the “long” civil rights movement, and in a formal sense, it surely was. But in his thoroughly researched book, The Hollow Hope, political scientist Gerald Rosenberg argued that it is a mistake for movements to bet on litigation, since Brown triggered a powerful counter-movement of segregationists that held up implementation of the Court’s decision until well into the next decade.

Rosenberg’s dismissal of the power of movements to advance rights through litigation was much criticized – by, among others, Michael McCann, who put forward a more capacious concept of the law, one that went well beyond litigation. With such a conception, McCann argued, the interactions between the movement and the law were not as easily dismissed as Rosenberg thought.

Yet both Rosenberg and McCann were focused on the effect of movements on the courts; in their debate, neither one examined the converse relationship; the effect of significant court decisions on movements, on their organizations, and on what sociologist Charles Tilly characterized as their “repertoires of contention.”

Thursday, October 20, 2022

Support for Horrible Politicians (Trump-Focused Edition)

by Neil H. Buchanan

Yesterday, in "Support for Horrible Politicians (Herschel Walker and Liz Truss edition, with cameos by Donald Trump and Bill Clinton)," Professor Dorf commented on the nonstop series of disqualifying scandals engulfing Republican candidate Herschel Walker -- a column that of necessity had to include an acknowledgement that those scandals might not be disqualifying enough to make Walker lose his race against Senator Raphael Warnock.  Why?  Because power.  That is, for Republicans who want to take back the Senate and exercise/abuse the power that their renewed majority status would bring, "support for Walker--or for Satan himself were he to run as a Republican--is instrumentally rational," as Dorf put it.

That is surely true and interesting, and it is merely the leaping off point for the rest of yesterday's column.  Notably, in the less than 24 hours since that column was published, the second politician named in its headline -- Liz Truss -- informed King Charles III that she is resigning as Prime Minister of the United Kingdom of Great Britain and Northern Ireland.  Why did I not simply write: "Truss announced that she's quitting"?  Highlighting the monarchist aspects of the UK's political system, while reporting the fact that their democracy has become utterly chaotic (with the unholy alliance between Nigel Farage and Boris Johnson having finally broken the system so badly that they now cannot even keep a PM in office for two months), makes it especially poignant to note the odd reality that their democracy is still in better shape than ours.

Truss, after all, left in disgrace, because even her own party's supporters stopped supporting her.  As Dorf pointed out yesterday, that is impossible to imagine here.  It is not only impossible to imagine in situations like Walker's, where the devil's bargain is obvious.  It is barely possible to imagine it happening in the US even when swapping out damaged goods for someone less awful would not threaten anyone's power.

Here, I want to explore the deeper explanation that yesterday's column offered for that bipartisan reality: "a rally-'round-our-leader/nominee phenomenon."  I think that is right, but I think it also misses something important about the difference between Republicans and Democrats.  And a more complete explanation will remind us just how central bigotry and hatred are to the American conservative movement today.

Wednesday, October 19, 2022

Support for Horrible Politicians (Herschel Walker and Liz Truss edition, with cameos by Donald Trump and Bill Clinton)

by Michael C. Dorf

Why are most Georgia Republicans and the national Republican Party's leaders and donors still supporting Herschel Walker for Senate, even after learning that he is a shameless hypocrite who condemns absentee fathers and abortion even as he is an absentee father who encouraged and paid for an abortion for a woman whom he impregnated (and who had the abortion and, despite further abortion advocacy from Walker, later birthed one of those children whom Walker abandoned)? I suppose that for some, perhaps many, of the conspiracy-theory-minded rank-and-file members, it's because they disbelieve all negative news stories about their team.

But many other Republicans acknowledge that Walker is a loathsome hypocrite. Still they regard his very serious personal failings as much less important than control of the Senate, where he will surely be a reliable vote for the party's agenda. Given their goals, support for Walker--or for Satan himself were he to run as a Republican--is instrumentally rational.

That said, I'm probably giving most Georgia Republican voters too much credit. Just as Donald Trump's loathsomeness is a feature, not a bug, for his supporters, so I have little doubt that a great many of Georgia Republicans have persuaded themselves that Walker's abandonment of his children and hypocrisy are indications of his "toughness" or some other self-serving nonsense. After all, Walker won the GOP primary by an overwhelming margin.

Tuesday, October 18, 2022

How Does the Conventional Wisdom Become Conventional?

by Neil H. Buchanan

How does everybody know what "everybody knows"?  That question has been lurking just under the surface in my writings recently, as I have been pushing back yet again against the widespread quasi-religious belief that DEBT IS HORRIBLE, HORRIBLE, HORRIBLE!  Last week, The New York Times offered a particularly silly example of the everybody-knows-the-national-debt-is-a-problem genre of news analysis -- lacking both news and analysis -- and I had a great deal of fun picking it all apart in a two-part Verdict column, followed by a complementary Dorf on Law column on Thursday.

Today, I followed up that onslaught by writing another Verdict column that was mostly dedicated to answering a question that I had raised and only partly answered in last week's writings: Why is it true (and not a problem) that the national debt only goes up and never down?  Unsurprisingly, I have written about that topic many times, including in a symposium piece ten years ago: Why We Should Never Pay Down the National Debt.

Before getting into that topic in today's column, however, I offered a theory about why The Times publishes this rubbish on such a regular basis:

I should say that the answer to the question in last week’s Verdict column—Why does The Times publish baseless anti-debt propaganda?—has a fully cynical explanation, which is that there is a market for this kind of nonsense. The Times largely sets the agenda for the rest of the American media landscape, and they know that any story about the supposedly super-scary national debt will always generate buzz. It is a topic that seems very sober and serious, it is complicated and intimidating, and it has a simplistic morality tale at its core. They publish stories about it because there is an audience.

Upon further reflection, that explanation seems true but incomplete in an important way.  Here, I want to go deeper into the question posed by the title of this column: How Does the Conventional Wisdom Become Conventional?

Monday, October 17, 2022

Of the Federalist Society and Civil Discourse

 By Eric Segall

Over the course of the next few weeks, I will be participating in a virtual debate with Professor Ilan Wurman over the alleged return of living constitutionalism (it never went away) for the national student section of the Federalist Society, and then will be talking about affirmative action at a panel at the National Federalist Society Lawyer's Convention (with Michael Carvin among others, so watch out). Many of my progressive friends in the academy will not speak at any Federalist Society events, some will speak only at events sponsored by the students at their schools, and some agree to speak if they are interested and available. In the first two categories are prominent folks I respect quite a bit so I have given much thought to my participation in Federalist Society events. When I announce these programs on Twitter or other places I sometimes get serious pushback, so I wanted explain my reasoning for participating in these programs, and at the same time suggest something important I have been seeing at these events over the last couple of years.

Friday, October 14, 2022

Animal Welfare Everywhere

 by Michael C. Dorf

My most recent Verdict column discusses Tuesday's SCOTUS oral argument in National Pork Producers Council (NPPC) v. Ross, the pork industry’s challenge to California’s Proposition 12, which bans the sale of meat produced by confining pigs in gestation crates and in other ways that fail to satisfy California's humane treatment standards. The column follows up on an August Verdict column in which I pondered the potential implications of a victory for California for red-state efforts to ban the importation of abortion pills from other states. Although this week's argument did not focus on abortion pills, the Justices' questions revealed that they are concerned about the implications of a victory for either side. My column concludes that there are slippery slopes in either direction and that therefore perhaps the Court should leave the matter to political processes at the state level (where price-conscious consumers give out-of-state producers virtual representation) and in Congress (which can enact federal laws pre-empting state laws that unduly burden interstate commerce).

Regular readers of my work may be disappointed to discover that my discussion of the Prop 12 case in both columns addresses broad issues regarding the scope of the Dormant Commerce Clause but fails to contextualize the case with regard to animal welfare. In today's essay, I remedy that gap.

I'll say a few words about the half a million pigs slaughtered in the U.S. every day to feed Americans' taste for pork, as well as two particular pigs who avoided that fate thanks to the efforts of Wayne Hsiung and Paul Picklesimer. Their open rescue of Lily and Lizzie led to an expensive federal investigation and felony charges in state court in Utah. Despite the trial judge's exclusion of nearly all the evidence of the cruel conditions at the Smithfield facility from which Hsiung and Picklesimer rescued Lily and Lizzie, last week a jury drawn from "a part of rural Utah whose economy is largely tied to the fortunes of agricultural giants like Smithfield" acquitted them on all charges. (The quotation marks in that last sentence enclose language drawn from an excellent NY Times article following the acquittal. An article in The Intercept also provides a useful account of the case.)

Hsiung is the co-founder and Picklesimer is a member of Direct Action Everywhere (DxE), a network of activists who, as their name suggests, take direct (but always nonviolent) action to challenge the injustice of the status quo. I'm going to use the  DxE acquittals and the Prop 12 case to discuss a topic that I have addressed on occasion in the past and that occupied Professor Sherry Colb and me in Chapter 5 of our book Beating Hearts: Abortion and Animal Rights--the relation between laws and other efforts to reduce the cruelty of animal agriculture, on one hand, and efforts to abolish animal agriculture, on the other hand.

Thursday, October 13, 2022

Economic Policy as Religious Dogma: Why Prove Anything When You Can Believe it as a Matter of Faith?

by Neil H. Buchanan

When did economic policy become a matter of faith?  I am not talking about fringe grifts like the "prosperity gospel," nor am I asking why White Christians in this country have long been intensely loyal to the Republican Party's extreme version of corporate capitalism (which requires them to perform impressive mental gymnastics to clear some rather imposing scriptural hurdles).

I am not, in fact, talking about organized religion at all.  My focus here is on the evidence-resistant, stubborn presumptions about economics and other secular issues that we see every day among politicians and commentators, revealing that they are in fact not engaged in reasoned debate but are instead committed to beyond-logic truths that can never be challenged.  This is the essence of religious belief: truth without reason.  (That is not a criticism, because it is what belief is all about.  See countless links here.)

One of my first scholarly publications begins with a quote from two economists who, after summarizing the weak empirical and theoretical case for a particular economic theory (that tax cuts will stimulate business investment, not that it matters to the point here), noted that many economists were sticking with that long-discredited theory. They concluded that such continued belief in the theory "must ... rest essentially on faith.  Faith is indeed sometimes rewarded.  But for our part, in this instance, we remain agnostic."

This kind of quasi-religious belief structure has become ubiquitous on the (election-denying) American right.  For example, in response to my Dorf on Law column two days ago, part of which included a critique of libertarians' hatred of central banks, one reader responded via private email: "As an economic philosophy, Libertarianism is nothing more than a cult."  He went on to note that the Rand Paul types are committed to a canon of non-falsifiable beliefs, such that (for example) they are sure that the Gold Standard was never at fault, even when it caused massive problems, and that it would have solved every problem in the decades since then, if only the nonbelievers would have brought Hard Money Heaven back to earth.  (My words, not his.)

My other writing this week deals with a topic that is just as faith-based as any of the other quasi-religious policy commitments that we see in American life: the presumed horrors of government debt.  What makes this topic especially annoying, however, is that the apostles of the faith would insist that they are not elevating belief above reason at all, assuring us (and themselves) that they are being "hard-headed realists" and are utterly non-ideological.  True-believing libertarians can at least admit that they are engaged in an ideological battle.  But the debt-haters are cultists, too, and their self-delusion continues to matter.

Wednesday, October 12, 2022

A Requirement of Colorblindness in University Admissions is Constitutionally Unjustifiable and Impossible in Practice

 By Eric Segall

On Halloween day, the Supreme Court will hear two cases involving the use of racial criteria in university admissions. The plaintiff in both lawsuits is Students For Fair Admissions (SFFA ), a non-profit association long committed to asking the Supreme Court to take control of thousands of colleges and universities across America and prohibiting them from considering the race of their applicants in any way. One of these cases, against Harvard, is brought under a federal statute, and the other, against the University of North Carolina at Chapel Hill (UNC), is brought under the federal Constitution. I will leave the Harvard case to statutory interpretation experts. This post is about the United States Constitution.

Part I of this post addresses the legal issues surrounding a constitutionally required color-blindness rule. Part II shows why such a requirement would, in any event, be extremely difficult to enforce, leading to costly, lengthy, and disruptive litigation in the federal courts that won't, in any event, remove race completely from university admissions. Such a formal rule would simply drive that use further underground.

Tuesday, October 11, 2022

How Did We Luck Out at the Fed?

by Neil H. Buchanan

This is the season that the Nobel Prizes are given out, including the fake one for "economic sciences."  I have written more than enough rants about the faux-Nobel in economics over the years, so I will spare longtime Dorf on Law readers another detour down that blind alley.  (Those who are interested or were unaware of the fraudulence of that prize, however, can click here.)

Instead, I will use today's column to comment on one of this year's recipients of the Sveriges Riksbank Prize in Economic Sciences in Memory of Alfred Nobel, the former Princeton professor and former Fed Chair Ben Bernanke.  After describing Bernanke's economy-saving work at the Fed, I will then ask how we -- a country that has seen its governing institutions go from bad to worse -- have somehow created and maintained such a fantastic central bank.  Short answer: Lucky, I guess.

I am not arguing that the Fed is perfect.  As I will explain (again) below, I think the Fed is making a big mistake right now; and I am not alone.  That mistake, moreover, could destroy the US and global economies, thus removing the tiny remaining hope that liberal democracy can survive the Trump/Brexit/Orban/Balsonaro/Brothers-of-Italy resurgence of fascism.

That is, to say the least, a rather important caveat.  Even so, the Fed is arguably the best central bank that anyone could reasonably hope to have created, and its current mistake is at least a matter of good faith.  Small consolation, perhaps, but important nonetheless.

Monday, October 10, 2022

Marijuana Legalization Obstacles and the Frequently False Promise of Veto Gates

 by Michael C. Dorf

On Thursday, President Biden pardoned thousands of people who had been convicted on federal charges of simple possession of marijuana. To be clear, none of those people were in prison. Still, as the president explained, a felony conviction stands as a substantial obstacle to employment and full participation in public life. Given how common marijuana use is, it was profoundly unfair that the people who happened to have simple possession convictions--disproportionately people of color, as the president also noted--were burdened with the concrete and stigmatic disadvantages they bore. I applaud the pardons.

That said, the pardons do not cover people who were convicted of selling marijuana. Nor do they cover people convicted for violating state laws, because the president lacks power to issue pardons for state crimes. These pardons thus do not solve the problem of marijuana criminalization, which would require federal legislation removing "marihuana" (and related terms) from the statutory list of Schedule I substances.

After saying a bit more about what I mean by "solving" the marijuana criminalization problem, I'll explain why the political obstacles to action in Congress undercut a frequently repeated claim about the supposed benefit of so-called veto gates to legislation.

Friday, October 07, 2022

Republican-Appointed Judges Try to Punish Yale for ... Something

by Neil H. Buchanan

Given the target audience of Dorf on Law, the odds are that a relatively large number of our readers are former judicial clerks.  Another group of readers includes lawyers whose friends and associates have held clerkships, while some readers might not be familiar with the phenomenon of clerking at all.  A recent kerfuffle coming out of right-wing judicial circles offers interesting tidbits for everyone, no matter which group one happens to be in.

The short version of the story is that some Republican-appointed federal judges have decided to punish Yale Law School's students because of "cancel culture," or something.  It is surely a classic example of group blame, but it is also a reminder that having the word "Judge" in front of a conservative lawyer's name does not stop them from spending all of their time in the fever swamps.

To be sure, the now-infamous Judge Aileen Cannon has -- entirely on her own -- made it clear just how ridiculously partisan a Trump-appointed judge can be.  Every step she has taken in the Mar-a-Lago search warrant case has been mocked mercilessly (with "deeply problematic" being the kindest description that I have seen of her poor reasoning), while a screw-up that was reported yesterday makes her look even more ridiculous.  The Eleventh Circuit panel's unanimous rebuke of her original ruling in Donald Trump's favor made it clear that what she is doing is beyond the pale, even for a panel that included two other Trump appointees.

Even so, the very fact that those Trump appointees were not in the tank for their political patron suggests that there might still be some non-partisanship and integrity left in our judicial system (at least below the Supreme Court).  Still, judges are people, and it very much matters where they get their information.  Unfortunately, too many Republican judges appear to be listening to people on Fox News who most definitely are not journalists.  What could go wrong?