Thursday, June 30, 2022

A Very Few Very Quick Thoughts on the Last Day of the SCOTUS Term

 by Michael C. Dorf

This little post is not intended as a summary of the whole Term, just today. Here goes:

(1) It was terrible, but it could have been worse. The Court in Biden v. Texas allowed the administration to end "Remain in Mexico." The idea that this cruel policy--pursued by no administration prior to Trump's--was statutorily required all along was unbelievable. And the Court's holding was simply that the word "may" means "may," not "must." So of course the case barely came out the right way, with Justices Thomas, Alito, Gorsuch, and Barrett dissenting.

(2) West Virginia v. EPA is very bad news for the planet and for regulation more generally. Justice Kagan is a bit too cute in dissent in pointing out that the Court had never before used the term "major questions doctrine." The basic idea was established in prior cases, but she and Justices Breyer and Sotomayor, who joined her dissent, are right that the Court has expanded the doctrine. Given that virtually any administrative law case worth litigating is going to involve the sorts of issues that the Court identifies as triggering the major questions doctrine, a more accurate term going forward might be simply the "questions doctrine." Put differently, the Court has now created a plain-statement requirement for delegation. And given that the whole point of delegation is that Congress can't anticipate everything, that will rarely be satisfied. So the administrative state is hobbled. Quite the parting gift for Justice Breyer.

(3) Speaking of Justice Breyer, hats off to him. Here's my tribute, in case you missed it. And welcome to Justice Jackson!

(4) The most jaw-dropping line I read today was in the concurrence by Justice Gorsuch (joined by Justice Alito) in WV v. EPA. He wrote: "The framers believed that the power to make new laws regulating private conduct was a grave one that could, if not properly checked, pose a serious threat to individual liberty." Right. Regulating the private conduct of burning coal that ruins the Earth is a grave/serious threat to individual liberty. Compelling pregnancy and childbirth, not so much.

(5) The cert grant in Moore v. Harper--presenting the Court with a chance to weigh in on the horrific independent state legislature theory--is terrifying. The one potential silver lining is that perhaps the Court will do less damage in this setting than it would if the issue were to arise in the context of a Presidential election. But the case still holds the potential to finish off what's left of American democracy.

And with that--and whatever sunshine and unicorns Professor Buchanan brings tomorrow--I wish my readers a happy Independence Day weekend.

A Sensible Limit on State Sovereign Immunity

 by Michael C. Dorf

In a few hours, SCOTUS will end its Term, Justice Breyer will officially step down, and Justice Jackson will shortly be sworn in. The two remaining cases on the docket will be handed down. Those cases provide the Justices with an opportunity to further tear the fabric of American law, perhaps by eliminating Chevron deference to administrative agencies, perhaps by reviving the non-delegation doctrine, or perhaps by so inflating the major questions doctrine as to effectively kneecap the administrative state without formally acknowledging as much. Should something along those lines emerge from One First Street, I may write a second blog post today.

Meanwhile, I want to take a few moments to celebrate a rare victory for sanity and decency yesterday in Torres v. Texas Dep't of Public Safety. By 5-4, the Court (Breyer, joined by Roberts, Sotomayor, Kagan, and Kavanaugh) upheld the application of the Uniformed Services Employment and Reemployment Rights Act (USERRA) to a state agency. The Court did not cite the amicus brief on behalf of Professors Philip Bobbitt, Jeff Powell, and me, but its reasoning proceeded along lines similar to those we urged. That's good because claims under USERRA are obviously just. I'll say a few more words about the case as well as state sovereign immunity more broadly.

Wednesday, June 29, 2022

The Neoliberal Takeover of Universities and the Wokeness Debate

Note to readers: Last Thursday (June 23), I published a new Verdict column, "Social Security’s Good News is Good News," in which I took my yearly look at the health of the world's most successful social program.  After demonstrating that the latest annual forecasts from the Social Security Trustees are even better news than usual -- and that the political hit job on Social Security continues to be based on neither evidence nor logic -- I also gamely offered the optimistic argument that Social Security (and even Medicare) might survive after the Republicans finish turning the United States into a one-party autocracy.

I have no further thoughts on that topic right now.  When the Dobbs decision became a reality, I shared Professor Dorf's immediate sentiments ("Ugh") and called it a (very bad) week without writing my usual second Dorf on Law column.  Today, I will continue to distract myself from our Court-ordered dystopia (and reports about the plate-throwing former occupant of the White House) by writing the column that I had been planning to write last Friday, which might be a balm for those readers who, like me, need to think about something else.

by Neil H. Buchanan
Some non-conservatives have over the last few years complained, with varying degrees of bemusement and bitterness, about "cancel culture" and in particular its impact on American universities.  In so doing, they end up aligning uncomfortably with the reactionary right that is now ascendant in this country, arguing that so-called woke-ism -- "cancel culture" and "woke" being the right's re-branding of the old political correctness (PC) trope -- truly is a problem on our campuses (and elsewhere).
It is always possible, of course, that people who disagree with each other (even fiercely) on various topics can find themselves in agreement on a specific subject.  And when that happens, there is no reason to say, "Well, now I have to change my mind, because I disagree with those people about everything else!"  Political positions should be based on the merits rather than team jerseys.  I thus hereby emphasize that my objection to the consensus between the right and the center-left regarding PC/cancel culture/wokeness is very much on the merits.
[Aside: I have been trying for some time to come up with a shorthand way to refer to political correctness, cancel culture, and "woke," all of which mean the same thing -- or, more accurately, all of which lack actual meaning in exactly the same way, in service of the effort to silence criticism of the powerful.  Ignoring the chronological order in which they entered the popular lexicon, the acronym is WPCCC, which can be pronounced "whoopsies."  I will go with that for the time being.]

Last week, I published columns on Verdict and here on Dorf on Law arguing on the merits that the concerns expressed about Whoopsies by conservatives, joined by many center-left and even some left liberals, do not hold water.  I reiterated my mockery of a hand-wringing piece by the editors of The New York Times from March of this year, which deserves every bit of ridicule it has received.  Even so, it might be possible for reasonable people to reach the same conclusion that the editors of The Times reached without agreeing with their baseless reasoning (just as one can, as noted above, agree with hard-core Republicans on a particular issue almost by accident).
What is the strongest case that can be made by a non-culture warrior who perceives a problem with "censoriousness" or "illiberalism" on the left?  In other words, what is the best argument that people who do not dismiss Whoopsies might offer?

Tuesday, June 28, 2022

"The State Didn't Get You Pregnant"

 by Sherry F. Colb

I have written quite a few posts about Dobbs v. Jackson Women's Health Organization in these pages. With the luxury of time and space, I was able to elaborate both the foundation of my view that women have a strong interest in expelling an unwanted zygote/embryo/fetus from their bodies and the reason why a zygote should not have the status of a being with rights.

Last week, I received an invitation to write an op-ed for Fox News about the abortion decision. I knew that I could not take on the entire issue in 600-800 words, so I decided to focus on Samuel Alito's (SA's) complete failure to consider the costs in pain and risk and hardship that pregnancy--and especially unwanted pregnancy--entails. I put the status of the zygote/embryo/fetus to one side, in other words, and concentrated on the pregnant woman's side of the balance.

No one will be surprised to learn that I received some hate mail highlighting my stupidity, my dishonesty, and the likelihood that I had had "random sex" in order to become pregnant. Despite all of the infantile messages (which I stopped reading early on), I picked up on a thread of logic (well-camouflaged, to be sure) that I think is worth discussing (though not on Fox News).

Monday, June 27, 2022

The Week from Hell

 By Eric Segall

Last week the Supreme Court issued three rulings that dramatically changed constitutional law in this country for the worse. The three liberals dissented in all three cases. The ultra-conservative Supreme Court majority lowered the wall of separation between church and state, limited the ability of states to pass reasonable gun laws, and reversed Roe v. Wade and returned the issue of abortion to the states (or potentially Congress). My very sad observations are below.

Friday, June 24, 2022

Gunning for Involuntary Pregnancy

 by Sherry F. Colb

This week, the Supreme Court held that New York State's limits on concealed carry are unconstitutional under the Second and Fourteenth Amendments. Anyone who is being honest will acknowledge that those who framed and ratified the Second and Fourteenth Amendments had no expectation that the constitutional protection would extend without limits to those carrying concealed firearms on their person. That is perhaps why a group of people who are actually knowledgeable and competent on the history submitted an amicus brief explaining that the historical evidence does not do what the six ideologues on the Court want it to do. What bothered Justice Clarence Thomas (CT) about the New York law that he and his fellow power-judges invalidated was the requirement that a person who seeks a license to carry a concealed weapon in public demonstrate that they have an elevated need for a gun they might use in self-defense. Such a requirement, according to CT, demotes the Second Amendment right to keep and bear arms to second-class status.

Ugh -- That is All For Now

 by Michael C. Dorf

The leaked opinion in Dobbs is now the law of the land. I haven't read enough of it yet to know whether there are differences from what we saw last month to the final version, but it hardly matters. My co-bloggers and I will have more to say about this travesty in the days, weeks, and months ahead, but for now, ugh. Meanwhile, you can read my Verdict column on yesterday's gun ruling here. Also ugh.

Thursday, June 23, 2022

How to Qualify for Protection against Violence

 by Sherry F. Colb

When we talk about rights--who has them and who does not--we often refer to a broad range of entitlements, some of which are quite basic and others relatively limited in their application. In this post, I want to talk about the most basic of rights that anyone who could be considered "someone" ought to have, regardless of their intelligence, their long-term memory, their status as a loner versus a member of a community, and other characteristics that one might require before bestowing some rights. I refer here to the right to protection against the violence of others, with violence referring to assault and battery, torture, unnecessary incarceration, and murder. Even if you are not terribly bright, have few or no friends, never earn any taxable income, and delight in your illiteracy, you nonetheless have a right not to be subjected to violence of the sort enumerated in the last sentence.

Indeed, if anyone suggested that it is acceptable to assault you, to torture you, to kidnap you and hold you captive, or to murder you because you are less intelligent or capable than your rights-bearing neighbors, most of us would condemn the person making the suggestion as a bigot lacking empathy and a conscience. If anything, most moral individuals would regard cruelty toward a less intelligent person as especially heinous and disgraceful. It is not simply that less intelligent people come in under the wire and receive protections that the rest of us have; it is that we understand intelligence and other sorts of capacities as morally irrelevant to a right against violence. People of lesser intellect are at least as entitled to a right against violence as are geniuses. While we might allocate educational resources in a fashion that takes account of intelligence (or multiple intelligences), the basic right to be free from violence properly has nothing to do with I.Q. or any other measure of intelligence or skill.

Wednesday, June 22, 2022

(When) Will SCOTUS Hold that the Establishment Clause Violates the Free Exercise Clause?

 by Michael C. Dorf

Because of its low population density, Maine cannot afford to provide local public schools for all children in the state. Instead, parents of students in various rural districts throughout the state can receive tuition assistance (what I'll call vouchers) to pay for (some, most, or all of, depending on tuition) their children's education at an accredited private school, so long as the education the school provides is "nonsectarian," i.e., not religious. Until twenty years ago--when the Supreme Court decided Zelman v. Simmons-Harris--it would have been very plausible to argue that Maine's exclusion of religious schools from its voucher program was constitutionally required by the First Amendment's Establishment Clause. Zelman rejected that view and upheld what the Court deemed a neutrally structured system of vouchers that were redeemable at religious along with secular schools. Yesterday's 6-3 ruling in Carson v. Makin held that the state's failure to fund religious schools through its vouchers program is itself an unconstitutional violation of the parents' right to free exercise.

Thus, in the space of two decades, education vouchers redeemable at private religious schools went from (1) arguably unconstitutional as a violation of a core no-aid-to-religion principle to (2) constitutionally permissible if vouchers are also redeemable at secular private schools to (3) constitutionally mandated if vouchers are also redeemable at secular private schools. Or as Justice Sotomayor put the point in her dissent yesterday, "the Court leads us to a place where separation of church and state becomes a constitutional violation."

Tuesday, June 21, 2022

Why Do So Many Liberals Buy Into the Cancel-Culture Hype?

by Neil H. Buchanan 
In a growing but unplanned series of columns, I have been engaging in a post mortem of sorts on the American experiment, which is clearly in its final death throes.  One particularly interesting question is the amount of blame that establishment Democrats bear for the ongoing tragedy.  Although one might argue that there was never truly any way to prevent the Republicans from using the deeply antidemocratic flaws in the Constitution to create their one-party autocracy, I suspect otherwise.  In any event, there have certainly been plenty of times in which the nominally liberal party's leaders did nothing while the system was being destroyed under their noses.

In a new Verdict column today, I offer something of a mash-up of two very different examples of the bad instincts of many liberals and Democrats.  Specifically, I point out that the center-left's blithe agreement with the Republicans' framing of the political correctness/cancel culture/wokeness "problem" is surprisingly similar to the center-left's agreement with the Republicans' framing of criminal justice issues.

Despite the conceptual similarity, I do go out of my way to emphasize that the immediate consequences are much worse in the criminal justice arena.  I discussed that problem in a Dorf on Law column earlier this month, arguing that the label "limousine liberal" should not be applied to people merely because they have money but only when their commitment to liberal causes flies out the window the moment that they feel any discomfort in their lives.  Hence, today's Verdict column appears under the headline: "The Complicity of the ‘Comfortable Liberals’ in the Decline of American Constitutional Democracy."
I point out, moreover, that it is not merely that these nominal liberals lose perspective when they feel personally threatened.  The more surprising -- and morally indefensible -- problem is that they immediately lapse into Nixonian law-and-order reaction, even though the evidence shows that such policies always make matters worse.  So the poor, the weak, and the reviled end up being victimized yet again because some liberals stop thinking and let their lizard brains take over.

But what about the panic over this nonexistent thing that is currently being labeled cancel culture?  As I noted, there is nothing immediately at stake in that debate that in any way resembles the awful consequences for the victims of beat-their-heads-and-lock-'em-up carceralism.  In some ways, however, the intensity of the discussion around this fake thing called cancel culture is more intense.  And even if one were to believe the supposed liberals who are panicking, their own descriptions of the horribleness at issue are so vague and low-stakes that they are almost comical.  Why the disproportionate response?

Monday, June 20, 2022

What's Left at SCOTUS and Why You Should be Very Afraid

 By Eric Segall

As of this morning, the Supreme Court has 20 cases left to decide. This week the Justices will issue opinions on Tuesday and Thursday. The Court usually finishes its business by the last day of June but there is no hard and fast rule about that. Although many of these cases are certainly important, here's my list of the five most critical ones, and a brief discussion about each one.

Friday, June 17, 2022

At this Point, Talking About Election Strategy is Adorbs

by Neil H. Buchanan 
This has been a tantalizing week in American politics.  Horrible things have been happening, but just when it appears that all is lost, we are teased into thinking that some hope remains.  I am not falling for it (again).  Please allow me to explain, after which I will explore why all of the noise around US politics is at this point either cynical nonsense or (at best) self-deluded force of habit.

Thursday, June 16, 2022

The Link Between Justice Alito's Leaked Abortion Opinion and Rape Culture

by Sherry F. Colb

When people speak of "rape culture," what they mean is that society normalizes rape in one or more of a variety of ways. To normalize rape is to treat it as a normal behavior that is really not that big of a deal. The law can normalize rape directly by allowing some classes of rape and classifying the remaining subset as, in the words of Susan Estrich, "real rape." Sir Matthew Hale (MH), a British jurist from the seventeenth century with a starring role in Samuel Alito's (SA's) leaked opinion in Dobbs v. Jackson Women's Health Organization, promoted and served as a famous apologist for the marital rape exemption, a legal immunity for men who rape their wives, an immunity that lasted in this country until the late twentieth century. By allowing men to force their wives to have intercourse against their will, the marital exemption law fully normalized this form of rape and thus contributed enormously to rape culture (though no one had yet coined the phrase). 

The law can also normalize rape and thus bolster rape culture by in theory prohibiting a class of rape while simultaneously making it nearly impossible to prosecute. MH was a busy beaver in strengthening this form of rape culture too, by advocating for heightened skepticism of rape complainants. Such skepticism was factually baseless but spawned a jury instruction that I find nauseating and that also lasted in this country for several hundred years. In MH's immortal words, "[i]t must be remembered, that it [rape] is an accusation easy to be made and hard to be proved, and harder to be defended by the party accused, tho never so innocent."

Wednesday, June 15, 2022

House Select Committee Hearing 2: Scoundrels, Patriots, and Collaborators

 by Michael C. Dorf

The intended takeaway from Monday's meeting of the January 6 House Select Committee goes roughly as follows: Trump lost the 2020 election; every reasonably well-informed responsible person around Trump told him that he lost the election and explained to him, at length and repeatedly, that his claims of election fraud were, as then-AG William Barr put it, "bullshit"; Trump nevertheless repeatedly peddled false claims of election fraud in order to stoke his base and fundraise off of the Big Lie, which was, in Congresswoman Zoe Lofgren's phrase, "also a big rip-off." Further hearings will explain how Trump's promotion of the Big Lie fueled the insurrection.

Whether these hearings will move public opinion at all, much less enough to motivate 2024 Republican primary voters to reject Trump if he runs again, remains to be seen. In the meantime, I want to use this space today to draw some distinctions among three categories of Republican leaders.

At one end of the spectrum are what I'll call scoundrels--people who are all in on Trump. Some of the scoundrels are clowns, like My Pillow guy Mike Lindell, lawyer Sidney Powell, and opera buffa character Rudy Giuliani. Other scoundrels are calculating careerists like Senators Ted Cruz and Josh Hawley. But whether they have drunk the Trump Kool-Aid or only pretend to, the scoundrels and the voters who vigorously support them are presumably unreachable. They should be resisted, full stop.

At the other end of the spectrum are what I'll call patriots. Most of these people are never-Trumpers like George Conway, Bill Kristol, and Steve Schmidt--figures who were and remain conservative on policy matters but whose well-justified revulsion at Trump lead them to oppose him even if it means that people with liberal/progressive politics get elected. Especially noteworthy among the patriots are the handful of Republican elected officials, led by Liz Cheney, who openly challenge Trump while also trying to retain their positions as elected officials. To be sure, in recognizing the patriotism of such characters, I do not want to give them a free pass. It took courage and principle for Mitt Romney to vote twice to convict Trump on impeachment charges, but even so, he does not support filibuster reform that would be necessary to enact voting rights legislation sufficiently robust to have a hope of resisting the next round of anti-democratic moves by the Trumped up GOP. Still, I count Cheney, Romney, and others in this category as legitimate patriots.

Let us focus now on an intermediate category of what I'll call collaborators--people who worked for or with Trump but claim that they saw the menace he presented and tried to temper it. For better or worse, the Select Committee tried to make its case on Monday mostly through the testimony of collaborators: Bill Barr; Bill Stepien; Ivanka Trump; Jared Kushner; and a few others who were inside the White House trying to talk sense into Trump and dubbed "Team Normal" as opposed to the crazies working on Team Rudy.

Tuesday, June 14, 2022

A Court Divided on Telephone Pole Camera Surveillance

by Matthew Tokson

The First Circuit's long-awaited en banc decision on telephone pole camera surveillance of a home has finally arrived. But it's not clear what it means going forward, because the 6-judge court split on the issue 3-3. The dueling opinions take up a whopping 129 pages in total. And whether the police can set up a surveillance camera on a utility pole and point it at a person's house for months or years at a time remains ambiguous, with a developing split among courts and, now, a split inside the First Circuit itself. This post reviews the First Circuit's struggles with the pole camera issue and surveys the prospects for Supreme Court review of the issue in the near-term. 

The case involved ATF surveillance of the home of Nia Moore-Bush. Agents surreptitiously installed a camera near the top of a utility pole across the street from her residence. The camera recorded the front part of a Moore-Bush's house and yard and her full driveway for 8 months continuously, day and night. It could zoom in to capture facial expressions, small objects in a person's hands, details on clothing, license plates, and anything else of similar size. Over the 8 months, it "captured numerous comings, goings, and occurrences in the front curtilage of the residence" from the mundane to the personal to the potentially incriminating. The video was stored digitally.

An opinion by Judges Barron, Thompson, and Kayatta argues that the use of this pole camera was a "search" under the Fourth Amendment, requiring a warrant. The judges make several good points, which they unfortunately bury in an unreadably long (95-pages!), disorganized opinion. I'll try to unearth them.

Monday, June 13, 2022

Johnny Depp and Sir Matthew Hale

 by Sherry F. Colb

In Justice Alito's (SA's) leaked opinion in Dobbs v. Jackson Women's Health Organization, he took an originalist approach to answering the question whether women are entitled to be free of forced pregnancy and childbirth. Not surprisingly, at a time when women lacked the right to vote and their bodies were considered largely the property of their husbands, the right against forced pregnancy and birth was not an apparent priority with the all-male electorate. One could make an originalist argument for abortion rights based on the sorts of abortion prohibitions that predominated in earlier centuries, but SA was plainly not interested in finding a way to protect women's rights.

In the course of making a number of fatuous historical arguments, SA quoted Sir Matthew Hale (MH), a British Chief Justice some of whose pronouncements became part of our law for hundreds of years. The quote suggested that abortion is an extremely serious crime. A number of readers (including me) noted the perversity of citing MH in an inquiry into the scope of women's rights. As you may recall from other posts, MH sentenced two women to death for witchcraft, and he declared that husbands are rightly entitled to force their wives to have intercourse against their will (because getting married constitutes irrevocable consent) and that cognizable (non-marital) rape cases should carry a special instruction to the jurors that accusing a man of rape is super-easy but proving innocence of rape is super-hard, so fact-finders must be extra skeptical of women who accuse men of rape.

MH's amateur sociology was, not to put too fine a point on it, garbage. It is and always was extremely difficult for a woman to go into court and testify that she was raped, including back when MH was spreading his misinformation. We have zero evidence to support the proposition that women who bring rape charges are less worthy of belief than other kinds of victims of and witnesses to crime. Sadly, MH's special woman-hating instruction remained part of American law until the late 20th century.

What does any of this have to do with Johnny Depp? I have to acknowledge right off the bat that I did not closely follow the case by Depp against Amber Heard, his ex-wife. But what I do know is that in England, where the burden on a defendant in a defamation suit is greater there than here, Depp lost his defamation suit against the defendant there (a newspaper). The combination of the burden of proof and the outcome in England means that the defendant had to and did successfully prove that Depp abused Heard, just as the news suggested he did.

Friday, June 10, 2022

What's Wrong With Political Violence?

by Michael C. Dorf

The powerful House Select Committee public hearings that began last night should serve as a reminder--if any were necessary--of the grave peril that confronted and still confronts our democracy. Even more than the facts that were displayed, the failure of Republican members of Congress other than apostates Liz Cheney and Adam Kinzinger to participate and the failure of Republican state media (i.e., Fox) to air the hearings illustrate the danger, for they reveal that, for the right, condemnation of political violence is not automatic but dependent on who's engaged in that political violence.

Can that charge be fairly leveled against the political left as well? During the second Trump impeachment proceedings, lawyers for the defense and many of their allies tried to equate Trump's incendiary campaign with statements by Democratic politicians in support of the Black Lives Matter protests of the summer of 2020. The argument was that statements like Trump's admonition to his supporters to "fight" were mere hyperbole and thus no different from similar words from Democratic politicians. However, while one can find similarity in wording, as a matter of both the law of incitement and common sense, context matters. No mainstream Democratic politician said anything close to what Trump did under analogous circumstances.

With the possible exception of Congresswoman Maxine Waters, Democratic politicians expressed support for the goals of BLM protesters and for their right to protest peacefully but condemned out-and-out violence. While  some left-leaning commentators excused property damage, there is simply nothing comparable on the mainstream liberal/progressive side of the spectrum to the RNC's description of the January 6 attempted coup as "legitimate political discourse." Support for political violence is a fringe position on the American left; it is mainstream on the right.

The recent news of a foiled attempted assassination of Justice Kavanaugh is a useful illustration. I would not be surprised to learn that there were statements by individuals on social media expressing sympathy for the would-be assassin, but no responsible Democratic politician holding any authority was anything but rightly horrified. Attorney General Merrick Garland's statement was just right: "Threats of violence and actual violence against the justices of course strike at the heart of our democracy," Garland said, adding that the Justice Department "will do everything we can to prevent them and to hold people . . . accountable."

Thursday, June 09, 2022

Inflation, Political Opportunism, and an Odd Connection to Veganism

Note to readers -- This week, I published two Verdict columns:
"Are Activist Judges Efficient? Who Cares? What Matters Is That They Do Justice," published yesterday, drew inspiration from one of Professor Colb's recent run of brilliant, wonderfully acid columns about Samuel Alito's atrocious draft opinion in the Dobbs case.  My column, however, was not focused on abortion but rather saw me seizing an opportunity to endorse a version of "efficiency" that I can finally get behind.
Today, I published "How Did the Public Discussion About Inflation Become Even More Ridiculous?"  Here, I briefly summarize and then expand on my arguments in that column.

by Neil H. Buchanan

A DC think-tank maven recently referred to inflation as "the problem from hell."  She meant that inflation of the sort that we are currently experiencing is a political nightmare because it is an economic nightmare.  That is, people hate it but politicians cannot make it stop, so the in-party is helpless against attacks from out-party politicians who can demagogue the issue without even pretending to offer a solution (because there is none).

That is pretty much right, and it tracks with the first part of my column on Verdict today.  I make the point more specifically in the context of Republicans trying to make hay out of Treasury Secretary Janet Yellen's honest acknowledgement that she incorrectly predicted that inflation would have subsided from its slightly elevated levels by now.  (I say "slightly" because ... come on ... 8 percent annual inflation versus 2 or 3 percent annual inflation is simply not a big deal, either in the US or anywhere else.  This is not a matter of people using currency as toilet paper or showing up at grocery stores with wheelbarrows full of cash, hoping to buy goods before the prices double by the end of the day.)  Those attacks on Yellen are silly and unfair, which means that things are as they always are on the political right in America.

As an economist, however, I am finding inflation to be a problem from hell in a different sense: nobody knows that they are talking about, but everyone insists on talking about it.  This is, admittedly, the same problem that I confront when I write about budget deficits, Social Security, or unemployment.  Even so, there are some uniquely frustrating aspects of the inflation story that are worth teasing out here.
Oddly, I am inspired to write this in part by a purported connection between inflation and veganism.  Stay with me here.  It all fits together.

Wednesday, June 08, 2022

Abortion, the Thirteenth Amendment, and a (Hypothetical) Conversation with Justice Souter

 by Sherry F. Colb

When I served as a law clerk to Justice Harry A. Blackmun almost thirty years ago, I had the opportunity to meet most of the Justices, and they were all quite likable. One of my favorites was Justice David H. Souter. He was warm, friendly, super-smart, and very kind as well. On many occasions, Justice Souter did exactly what a good person of unquestionable integrity would do. But he and I once had a conversation that I found surprising and somewhat out-of-character. Because Justice Souter is such a mensch, the perspective that he brought to the issue we discussed is likely shared even by many good people today. My goal in this post is to lay out the view, explain its appeal, and then demonstrate why it is wrong.

I clerked the term that followed the Supreme Court's decision in Planned Parenthood v. Casey, a decision that was originally expected to overrule Roe v. Wade but ultimately upheld and applied it instead. (And no, I do not expect that switch to happen again). Justice Souter and I and my co-clerks were walking to lunch and talking about the theoretically soundest basis for grounding a right to abortion, on the theory that substantive Due Process was less than ideal. I said that I thought the Thirteenth Amendment was a much more sensible basis for protecting the right to abortion, and we were off to the races.

Justice Souter said that the Thirteenth Amendment--which prohibits slavery outside of the punishment-for-crime context--seemed inapposite because the entirety of the servitude would be no more than nine months. I was not sure of what to say because this argument struck me as wrong, but I did not have a clear sense of why it struck Justice Souter as right. I have had a chance in the last three decades to think about the conversation that day, and I will offer here a fictional account of what Justice Souter might have been thinking and the responses I would have given if we were still in conversation. I will write it as a dialogue to make it easy to follow along.

Privacy From Employers

 by Michael C. Dorf

My latest Verdict column assesses the apparent fact that the Supreme Court marshal's investigation of the leak of the Dobbs draft has sought mobile phone records from law clerks. Because the marshal is a government actor, the Constitution bears on the means her investigators may employ. In the column, I explain why a government employer could obtain these records even without a warrant or probable cause, so long as the scope of information sought were limited to phone numbers called, but that it's possible that the investigators seek more information, which could render such a search invalid under the Fourth Amendment. My main takeaway is that even if the investigators' request for mobile phone records is lawful, it is unwise, unfair, and counterproductive if the goal is to restore trust among the people working at the Supreme Court.

Here I want to add a brief point about privacy for people who work outside the government. Because the Constitution applies only to the government, they are not protected against surveillance by the Fourth Amendment or any other constitutional provision. Still, various federal, state, and local laws limit the ability of employers to demand private information from employees or, where they have access to such private information, to distribute it more widely.

However, these protections are hardly comprehensive. Employers can and many do monitor just about every aspect of an employee's life while the employee is at work or using employer property. In a world in which the line between the office and the outside world was blurring even before the pandemic swelled the ranks of white-collar telecommuters, that caveat subjects some of the most intimate details of a person's life to potential employer surveillance.

Tuesday, June 07, 2022

Blaming Progressive Prosecutors for ... What, Exactly?

by Neil H. Buchanan

"If you don’t recall the national media headlines reading 'Tough-on-crime Republican prosecutors on defensive over crime increase,' that’s because there hasn’t been any such coverage."  Washington Post columnist Paul Waldman makes that telling point after running through some statistics about the murder rates in Jacksonville and Fort Worth, comparing them unfavorably to San Francisco -- with the two former cities having double the latter's number of murders, or worse, in 2019-21, even though all three cities have roughly the same number of residents.
Waldman's larger purpose in that piece is to describe how the media narrative on crime reliably defaults to the most regressive talking points available.  He then points out that the press's lazy framing of the economy is similarly helpful to Republicans -- so much so that 55 percent of Americans in a recent poll said that the US is in a recession.  That is absolutely not true, but the press's constant drumbeat about inflation makes everyone ignore the incredibly good numbers about jobs and the comeback from the pandemic.
Indeed, several months ago, I noted that coverage of inflation had reached the stage where even the most disengaged person -- or the laziest comedian or pundit -- can just say, "Inflation, am I right?" and assume that everyone will nod along wearily.

I will return to the inflation discussion in paired columns on Verdict and here on Dorf on Law on Thursday of this week.  And frequent readers of this blog know that I frequently critique the media's sloppy, uninformed coverage of anything even mildly technical.  Here, however, my concern is not (at least in a direct sense) with the media's coverage of issues but with the cowardice and betrayal of many self-identified Democrats in the face of anything resembling bad news.  It is not only the press that defaults to Republican assumptions.  Many Democrats -- voters as well as weak-kneed officeholders -- do so as well.

Monday, June 06, 2022

How Not To Argue for Gun Control

 by Sherry F. Colb

I strongly support gun control. I do so because domestic violence is far more likely to escalate into domestic murder when the batterer has a gun. And although mass shootings kill fewer people than one-on-one gun violence in the home, mass shootings are tragic as well and traumatize communities and the nation.

So what is my gripe with some proponents of gun control? Their common argument that a particular firearm has no legitimate use in "hunting." This argument annoys me for two reasons, one legal and one moral. The legal reason this argument bothers me is that it sometimes rests on the notion that people have a constitutional right to go out with a gun and slaughter nonhuman animals. 

The Supreme Court's decision in District of Columbia v. Heller, however, recognizes a private right of gun ownership for self-defense, not for slaughtering animals. To be sure, the opinion contains a few references to hunting as an activity people who own arms might also undertake, but the holding of the case is that the Second Amendment "guarantee[s] the individual right to possess and carry weapons in case of confrontation" by an attacker. Elsewhere, the Court refers to the "core lawful purpose of self-defense."

It is therefore constitutionally irrelevant at best to point out that some weapon one hopes to ban is not a "hunting" weapon. If anything, weapons used to slaughter nonhuman animals are going to be very different from weapons that people use against assailants in self-defense. Therefore, pointing out that a particular gun is the wrong weapon for animal slaughtering tells us nothing about whether it is the right weapon for self-defense and accordingly, whether the Supreme Court would strike down a ban on the weapon.

Friday, June 03, 2022

The Court of Death

By Eric Segall

Readers of this blog probably know that I had a very close relationship with retired Judge Richard Posner before (and a little during) his current terrible battle with Alzheimer's. We talked on the record roughly once every two weeks for years and I have hundreds of hours of recorded conversations with probably the most famous judge of our lifetime not to sit on the Supreme Court. 

Posner, who everyone knows was not shy about saying what he felt, ranted quite a bit during these conversations about many things legal, political, and social. But the angriest and most upset I ever heard him was about an old concurring opinion by Justice Antonin Scalia in Herrera v. Collinsjoined only by Justice Clarence Thomas. 

The majority in Herrera ruled that, absent a constitutionally flawed trial, a capital defendant could not seek to re-open the trial with new evidence ten years after the initial trial. The dissent thought this was terrible, and it is, but Justice Scalia went further to say that the Constitution does not prohibit the execution of a person even if he is actually innocent  and even if the trial was constitutionally flawed, if there was a procedural default. Here are the words Scalia wrote that Posner told me were the most offensive he had ever come across from the modern Court:

There is no basis in text, tradition, or even in contemporary practice (if that were enough), for finding in the Constitution a right to demand judicial consideration of newly discovered evidence of innocence brought forward after conviction [even in a capital case].

Justices O'Connor and Kennedy, who both joined the majority opinion, were so offended by this idea that they wrote separately just to register their objections. They responded to the Scalia/Thomas concurrence by saying that "the execution of a legally and factually innocent person would be a constitutionally intolerable event." 

Or, as Posner said to me, "what kind of person would say that it is okay to put to death an innocent person? What kind of country would allow that to happen?" Posner also noted the irony of Scalia's and Thomas's "pro-life" positions on abortion and their pro-death positions on the state executing an innocent person.

Well, last week the Roberts/Trump Court voted six-three in Shinn v. Martinez Ramirez to allow Arizona to put to death two men who alleged ineffective assistance of counsel at both the trial and post-conviction stages of their journeys through the state court system. Mike explained this somewhat complicated case fully here. Suffice it to say that the six conservative justices felt that narrowly reading (or maybe misreading) a federal habeas statute to prevent a new hearing in this precise situation was more important than avoiding a situation where the state puts to death an actually innocent person. Yes, you read that right.

Thursday, June 02, 2022

Cause-and-Effect, Lawyers, and Mass Murder (Part Two)

by Neil H. Buchanan

If so-called Kitchen Table Issues continue to have any political valence (and on most days, I honestly doubt that they do), certainly the costs of buying, maintaining, and insuring the abodes within which those kitchen tables are located ought to matter to politicians.  And in a way, Florida's Republicans proved that the cost of housing is still a big political issue by holding a special session last week to address their state's homeowners' insurance crisis.  Even though they have successfully shut down serious political competition in their state, Florida's ruling party felt the need to act in the face of a genuine crisis.

That is not to say that the all-culture-war-all-the-time mindset of the Republican Party (nationwide no less than in Florida) was not a big part of the story.  After all, while this very real pocketbook problem was festering, my state's governor and his party spent months bullying teachers and students, passing bigoted legislation, and ignoring a broader housing crisis that is only getting worse.  Even so, the problem finally became impossible to ignore, and because the regular legislative session had ended with no action on homeowners' insurance (but lightning-fast action to punish Disney and to prevent professors from talking about "controversial" topics), the governor called a special session of the legislature to address this problem.

How big is the problem?  As a threshold matter, CBS News reported a month ago that "Florida is the least affordable place to live in the U.S."  That is largely about the prices of houses and rents on apartments, but every aspect of housing in the Sunshine State is a mess, certainly including homeowners' insurance.  As I wrote in Part One of this column last week, insurance rates here have skyrocketed in the last few years, with rates on my home in Gainesville more than doubling from 2019 to 2022.  My experience is hardly unusual, and compared to the rest of the country, it looks even worse, with Florida's average premium in 2021 being more than double the rest of the country's.

In today's column, I will summarize what the legislature did in its special session last week, tying that analysis to the questions that I raised in Part One regarding whether the standard blame-the-greedy-lawyers explanation -- which is often too-convenient nonsense -- might in this case have some measure of validity.

The good news is that the title of this two-part column -- "Cause-and-Effect, Lawyers, and Mass Murder" -- is not fully applicable to Part Two, because there is nothing in today's analysis that requires us to return to the analogy that I drew in Part One between excuses for gun violence and excuses for the insurance crisis.  Two days ago, I wrote a column specifically devoted to the gun crisis, and I am too emotionally spent to go back to that topic again today.

The bad news is more like weird/annoying news, which is that today's column in part takes us into the weeds of insurance law, including a bizarre costarring role for regulations regarding the age of roofs, of all things!  But if that is the bad news, I will gladly accept odd and boring over tragic and horrifying.

Wednesday, June 01, 2022

Overlapping Magisteria

by Sherry F. Colb

It has in the recent past become common knowledge that religion and science occupy complementary zones. Science tells us what “is,” while religion tells us what we “ought” to do about it. Science is thus factual, while religion is normative. And where religion describes facts, those facts are unknown and unknowable by science. The belief that someone will go to heaven after she dies is factual, but we will never have any evidence that will either prove or disprove the attested fact. So far as science can tell, everyone who has died is gone and unable to tell us where they are, for good or ill. Their whereabouts are thus fair game for the religious imagination. With religion telling us only “oughts” and unknowable “ises," one could come to the conclusion that the world of scientifically knowable facts falls outside the scope of religion. One would, however, be mistaken in drawing that conclusion.

Religion has always been more ambitious than the above picture suggests. When you read the Bible, you learn about factually specific events that the Book claims took place. For instance, the New Testament sets out the claim that the “Pharisees” (religious Jews) were responsible for the Romans' decision to crucify Jesus. For example, in John 5:18, we learn that the Jewish leaders tried to kill Jesus because he performed some of his works on the Sabbath. Likewise, in Matthew 12:14 we read that "the Pharisees went out and plotted how they might kill Jesus." Later (Matthew 27:25), the same Gospel has the Jews saying that the blood of Jesus is upon them and their descendants. These factual claims helped inspire pogroms (murder sprees) against Jews for centuries. Then, in 1965, the Second Vatican Council (Vatican II) released nostra aetate, which absolved the contemporary Jewish community of any complicity in the killing of Christ, but some hardliners—perhaps even including one or more sitting Supreme Court Justices—have resisted this Jew-friendly move.

The Bible—specifically, the book of Exodus—also tells us that Jews were slaves in Egypt for hundreds of years. That claim is clearly factual and subject to investigation. Archeologists have searched high and low but found no evidence of a substantial population of Jews who were enslaved to the Egyptians. Oops. I suspect Passover seders will continue nonetheless, but we do have a factual dispute here.

Tuesday, May 31, 2022

No, There Is No Nuanced Version of the Second Amendment Insurrectionist View

by Neil H. Buchanan
A week ago today, an eighteen-year-old armed with a weapon that would be nearly impossible to obtain in most countries killed 19 children and 2 adults in Uvalde, Texas.  The Washington Post reports that there were at least fifteen mass shootings in the United States in the six days after that horrific slaughter, with twelve of the shootings taking place over the Memorial Day weekend (a grimly apt name for that holiday this year).  The public's reaction to, and focus on, the Uvalde massacre has lasted longer than expected, with political reaction being more intense than anything we have seen since at least the Parkland killings in Florida four years ago.

With all of that attention, is there anything happening in the public debate that is different this time around?  On some level of generality, of course not.  The mind-numbing sameness of these tragedies is a big part of what makes it possible for cynical politicians to refuse to act, relying on the usual generic arguments about "evil," mental illness, and the rest of their rhetorical arsenal.  (Yes, I chose that word deliberately.)  Even so, each time this happens, there are differences in the ways that those familiar excuses are offered, which can be instructive.

Here, I want to revisit the so-called Insurrectionist View of the Second Amendment, which holds that The People must be allowed to own guns so that they can prevent the government from becoming tyrannical.  That view has gone from fringe joke to sacred precept on the American right in only a few short years.  It never should have been taken seriously in the first place, but given that it has now taken on such importance, I want to ask whether there might at least be a subtler version of that argument that could hold water.
So, just as we know that there are absurd versions of free speech absolutism that do not automatically undermine defensible almost-absolutist views of the First Amendment, and just as we accept that one can be in favor of high tax rates without being in favor of confiscatory taxation, can we find a version of insurrectionism that is anything less than an embarrassment?  No, of course not; but it is interesting to try.

Ah, Look At All the Potential People

 by Sherry F. Colb

In his draft opinion declaring that women have no right to expel the contents of their uteruses, Justice Alito (SA) mentioned the topic of "potential life." He put the phrase in quotes, perhaps to signify his own rejection of the idea that an ensouled zygote could be anything less than a fully realized person, entitled to take what it needs from its living incubator's bloodstream. Potential life comes up at all because both Roe v. Wade and Planned Parenthood v. Casey identified a governmental interest in such potentiality, thus proving--for SA--that at the very least, a zygote has an interest in going from potential to actual personhood. As with so much else in his misbegotten draft, though, SA is egregiously wrong about that.

As moral philosophers have long explained, having an interest means being the sort of creature for whom life could go well or ill. You have interests, and you know that because asking you "how do you feel?" is a coherent question when posed to you. The same question posed to an orange seed or a zygote does not make any sense. Neither an orange seed nor a zygote has preferences, fears, or any of the other feelings and sensations that would give them interests.

Let us consider some other things that, like orange seeds and zygotes, lack any interests, particularly in turning into a more actualized version of themselves. Imagine a 13-year-old girl who has begun menstruating. She plainly has interests. But now think about the egg that has just burst forth from one of her ovaries. That ripe egg is a potential person, just as a blank canvas is a potential painting. Each requires more material and hard work to become actualized, but so does a fertilized egg. If the 13-year-old has sex with someone carrying around his own store of potential people, one of those could penetrate the egg and thus complete the next stage in actualizing its potential. Neither the egg nor the fertilized egg, of course, has interests. Indeed, the very same religious people who praise the Lord for Commander Alito's pathological patriarchy would try to discourage the 13-year-old girl from having sex and would thereby aim to prevent a potential person from taking the next step toward becoming an actual person. Why? Because most people--perhaps the so-called "pro-life" most of all--can agree that teen pregnancy is undesirable (unless the alternative is ending an unwanted teen pregnancy that has already begun). No one worries about the potential life that exits the girl's body as part of her period; no one mourns for the "potential life" that never became an actual life in that case.

Saturday, May 28, 2022

Justice Thomas's Greatest Hits

 By Eric Segall

Unless you have been living under a rock, not a terrible idea these days, you have probably read about Justice Thomas's wife trying to overthrow the results of a free and fair election while Justice Thomas has not recused himself in a case involving that election, an obvious breach of judicial ethics. But as I wrote in 2012, Justice Thomas having such a lapse of judgment should not be surprising, as anyone expecting him to do the right thing is being foolish, unless that thing helps the Republican Party. 

Justice Thomas may have a warm smile and an infectious laugh but both his character and his legal opinions leave a lot to be desired. Here are his ten greatest hits in no particular order (and please notice I am leaving out Anita Hill's allegations but not because I don't believe her).

1) Justice Thomas has made numerous public appearances for the Heritage Foundation, a far right activist group, without disclosing that his wife had been a paid consultant for Heritage for years. 

In related news, Ginny Thomas was working for Heritage in 2000 trying to get folks placed in the upcoming Bush Administration while Justice Thomas was deciding the election for Bush in Bush v. Gore. 

Sorry, but I have never just "gotten over it," as the late Justice Scalia used to tell his many audiences.

Friday, May 27, 2022

Cause-and-Effect, Lawyers, and Mass Murder (Part One)

 -- by Neil H. Buchanan

Amidst the ongoing wave of unrelentingly horrifying news on all fronts, I will take a mental health break by writing about ... wait for it, and please do not click away ... homeowners' insurance!  There is a story coming out of Florida that is not about Don't Say Gay, punishing "woke" corporations, forbidding businesses from responding to COVID-19, stopping educators from talking about "divisive" racial issues that might cause "anguish" for a few of our apparently thin-skinned students, or even about a naked Florida Man driving a riding mower down the interstate while high on meth and bath salts.

This story is especially interesting to those of us with law degrees, as it involves the usual lawyer-hating that conservatives love to stoke.  It is also a not-made-up problem (unlike the non-problems that turned into the various pieces of real legislation that I referenced above), which makes it particularly unusual in my home state.  The question is this: Why is Florida's homeowners' insurance market a complete mess, with spiraling premiums and threats of insurers shutting down entirely?
The answer, as they say, may surprise you.  And fair warning: The mental health break ends about two-thirds of the way through this column, because I will turn my attention to the most recent mass shooting (the one in Uvalde, Texas, which for all I know will have been superseded by something even worse by the time I hit "publish" on this column).  There turns out to be a logical similarity between the arguments about Florida's insurance mess and Texas's (and this country's) orgy of violence.

Thursday, May 26, 2022

Rationalizing Misogynist Religious Rules

 by Sherry F. Colb

I grew up religious, though my religion was not that of a majority of the U.S. Supreme Court--the religion that regards a zygote as a person. The religion of my youth rejects the personhood of a zygote and indeed finds no "person" present until some point during labor. But like the religion that the Supreme Court now consults to legitimize abortion prohibitions--among the most extreme deprivations of liberty that a person can experience--my religion found ways to rationalize rules that might on their face appear misogynistic.

In my religion, devout families observe the purity of the family, whereby a woman must not engage in any sexual touching with any man (including her spouse) while she is menstruating. Justice Alito's (SA's) religion and that of his fellow theocrats on the Supreme Court does not, as far as I know, make any menstruation-related demands of its parishioners, though Christians and Jews alike have their share of nasty words to describe a normal part of most women's lives--the curse, for example.

Wednesday, May 25, 2022

Failure to Extend a Precedent Versus Failure to Apply It: A Comment on Shinn v. Martinez Ramirez

 by Michael C. Dorf

I have very little to add to the excellent analysis set forth in the dissent of Justice Sotomayor (joined by Justices Breyer and Kagan) from Monday's SCOTUS decision in Shinn v. Martinez Ramirez. The case does, however, provide an opportunity to make a broader point about a tactic of the Roberts Court (and of other Courts before it) that can be as threatening to existing law as frank overruling: the characterization of a straightforward application of current law as calling for an "extension" that the Court declines to make. After summarizing Martinez Ramirez as briefly as possible, I'll note some other instances of the practice.

Sam Alito and his Big Dicta

by Sherry F. Colb

In his draft opinion for the Supreme Court in Dobbs v. Jackson Women's Health Organization, Justice Samuel Alito (SA) criticizes Roe v. Wade for a variety of supposed flaws. One of the critiques rests on the claim that Justice Blackmun's opinion reads like a statute. What is wrong with a statute? you might wonder. The answer is that legislation is supposed to be different from judicial opinions. While legislation aims to anticipate the universe of categories into which particular conduct might fall, judicial opinions decide specific questions of law that have arisen between the parties.

A statute, for instance, might say (as quite a few do) that people must not conduct an enumerated set of businesses on Sunday (which, if you were wondering, is not at all the imposition of a Christian holiday on the American population, pursuant to McGowan v. Maryland). A judicial opinion might say that selling shampoo on Sunday is permissible under the court's interpretation of the statute in question.

According to SA, one of Justice Blackmun's sins in Roe was to create a trimester framework for pregnancy and then develop the sorts of regulation of abortion that the government could validly apply in each of the trimesters and under which circumstances. After the Court decided Roe by a 7-2 vote, Americans knew not only whether the Texas statute under consideration was unconstitutional but also what the contours of lawful abortion regulation would be in the coming years. SA condemned this feature of Roe because he saw the complex regulatory scheme as falling outside the scope of a proper judicial opinion.

Tuesday, May 24, 2022

The Concession that STILL Dooms Originalism

 By Eric Segall

One of the most cited articles about constitutional interpretation in recent years is the boldly named, "Originalism Versus Living Constitutionalism: The Conceptual Structure of the Great Debate," by the Godfather of New Originalism Professor Larry Solum. The piece is complex and much can and has been said about it by it other theorists but I want to focus (again) on one aspect of the article that I wrote about previously because that part of Professor Solum's article was also used by Professor Randy Barnett in his recent and interesting review of Adrian Vermeule's book "Common Good Constitutionalism." 

First this post talks about Professor Solum and then Professor Barnett.

Monday, May 23, 2022

Nullification in Abortion Prosecutions (Guest Post by Peter N. Salib and Guha Krishnamurthi)

 by Peter N. Salib and Guha Krishnamurthi

The leaked draft of the Dobbs opinion threatens a drastic curtailment of women’s reproductive rights. Several states already have trigger laws that will criminalize abortions. Others are passing more restrictive laws that will impose criminal and civil liability on providers and receivers of abortion services. This will be a sea change, and indeed a tide against popular sentiment. 

We think that jury nullification may have a role to play, even if limited, in securing reproductive rights. Below we proffer a brief explanation how, but a longer version of our argument is available here.

Alito, Syphilis, and Unwanted Pregnancy

by Sherry F. Colb

I want to draw an analogy here. The analogy may be offensive to some, but I think it captures a part of what is wrong with Justice Samuel Alito's (SA's) leaked opinion in Dobbs v. Jackson Women's Health Org. and its conclusion that Roe v. Wade and Planned Parenthood v. Casey were "egregiously wrong."

From 1932 until 1972, the U.S. government and Tuskegee University recruited Black men suffering from syphilis to come in for treatment for their condition. The doctors then pretended to treat the disease but actually did nothing, initially because no treatment existed and in later years by allowing the patients to think that they were receiving the top of the line medical cure when in fact they were simply getting sicker and sicker. The purpose of this "study" was apparently to observe the course of untreated syphilis in Black men for medical knowledge. Most shocking about the experiment was that it continued even after penicillin became available as an effective cure for the disease. The Tuskegee doctors chose nonetheless to continue with their fake treatments so they could watch the progress of the illness, which ultimately leads to dementia and then becomes incurable.

This experiment exposes how recently medical professionals viewed Black Americans in purely instrumental terms. It comes to mind when when I absorb SA's attitude and the opinion he wrote to make that attitude part of the law. I will hereinafter refer to the Tuskegee doctors and to SA as "the villains," though I understand I must make my case for this appellation.

In both Tuskegee and unwanted pregnancy, the villains did nothing to create the undesirable condition in which Black men and women of all races respectively found themselves. No doctor injected syphilis into a patient and no government actor inseminated a woman. Both Black men and women of all races engaged in sexual activity that gave rise to the conditions in which they found themselves.

What the villains did was to decide that the women and Black men should remain in the state that made them feel sick and that they desperately wished to exit. And indeed, in both cases, there were ethical doctors prepared to assist women and Black men in exiting their unwanted and sickening respective conditions, but someone came along to stop them from receiving that assistance. The Tuskegee doctors effectively prevented their patients from getting help by misleading--much in the way that Crisis Pregnancy Centers mislead women into thinking they are going to an abortion clinic, lies that were approved by the Supreme Court in NIFLA v. Becerra.

SA now invites states and the federal government to criminally punish anyone who helps a woman exit an unwanted pregnancy that may feel to her as awful as and even more threatening than an STD, acquired the same way as the syphilis that so many Black men were left to die of in Tuskegee.

Friday, May 20, 2022

The Electoral-Industrial Complex and Shiny Distractions

by Neil H. Buchanan
This has been one of the more active weeks of the 2022 midterm election season, with primaries held in key states and pundits reading the tea leaves and offering hot takes on what it all means.  Will Trump's endorsed candidates win?  Mostly yes, but not for any reasons that add up to a lesson of any significance.  Are insurrectionists and election deniers doing well?  Again yes, because that is the reality of Republican politics this year.  I guess it would be biggish news if the craziest of the crazies were losing in significant numbers, but mostly there is not much interesting happening.

Even so, there are people who are both professionally obligated and clearly personally invested in making this all seem breathlessly important.  Unlike so many things in American life in the 21st Century, that is very much an all-sides-do-it phenomenon.  Almost completely empty horse-race coverage dominates American political discourse, but the deeper problem is that the people who spend their time talking about it have every incentive to pretend that what is truly happening is not happening.  What is happening?

Thursday, May 19, 2022

In Vitro Fertilization and Dobbs

by Sherry F. Colb

As readers know, I have spent the last few weeks identifying the many ugly features of Justice Alito's (SA's) draft opinion in Dobbs v. Jackson Women’s Health Org, and there is much left to identify. But I want to turn in this post to a topic that has not received much airtime either in the Dobbs opinion or among those worried about the impact of the decision approving laws that force women to remain pregnant and give birth against their will. That topic is in vitro fertilization. The Court seemed to ignore it, and with some notable exceptions (like Senator Tammy Duckworth), public debate has mostly focused on other issues.

Yet the decision in Dobbs virtually guarantees the government's authority to prohibit IVF.  After explaining why I draw that inference, I will offer my account of why neither SA nor the rest of the Court is interested in enabling those who would prohibit IVF.

Wednesday, May 18, 2022

As a Matter of First Impression, Should Free Speech Protect the Right to Protest at Homes?

 by Michael C. Dorf

My latest Verdict column addresses the legal and strategic questions surrounding protests outside the homes of justices, judges, and other public officials. While recognizing the utter hypocrisy of the likes of insurrectionist-adjacent Josh Hawley calling for peaceful protesters to be prosecuted and that the issue could distract from the much larger looming disaster for American women as SCOTUS prepares to overrule the right to abortion, I nonetheless regard the questions as somewhat difficult. Here I want to step back a bit and consider the free speech question without the overhang of existing constitutional doctrine--especially the 1988 SCOTUS ruling in Frisby v. Schultz.

As I note in the column, Frisby found that the public have a right to peaceful protest in residential neighborhoods but not to engage in "targeted picketing"--i.e., protesting at length in front of any particular home. Is that the right line? Let's start from scratch.

Tuesday, May 17, 2022

Rational Basis Scrutiny?

by Sherry F. Colb

In his lengthy draft opinion overruling Roe v. Wade and Planned Parenthood v. Casey, Justice Samuel Alito (SA) does a number of things that add insult to injury. I have accordingly criticized SA's opinion here, here, here, and here, rather than just saying "Alito is a misogynist creep who turned back the clock a half century" and calling it a day. In this post, I will focus on the slap in women's faces that SA achieves by ruling that prohibitions against abortion trigger "rational basis" scrutiny.

Rational Basis

The first thing to note is that every law, however innocuous, must survive rational basis scrutiny if challenged under the Fourteenth Amendment Due Process Clause (as well as the Equal Protection Clause). A law, for instance, that requires drivers to signal before a lane change would, if challenged, have to undergo rational basis scrutiny (RBS). RBS, in turn, demands that the law at issue serve some legitimate purpose. Many have characterized RBS as toothless because only a ridiculous law that does not, even hypothetically, promote a legitimate objective fails RBS. Strict scrutiny, by contrast, demands that the actual purpose of a law (not just a hypothetical goal) promotes a compelling governmental interest and does so in a way that is narrowly tailored to the compelling interest and therefore neither over-inclusive nor under-inclusive with respect to that purpose. Limits directed at the freedom of speech and the right to marry must survive strict scrutiny, which most laws fail to satisfy.

Monday, May 16, 2022

A Few Very Hard Questions About Religion and the Court

By Eric Segall

A number of years ago I sat on a long plane ride next to an orthodox Jewish man. We struck up a conversation and found out that we each had three children. I have three daughters while he told me he had two daughters and a son. When I told him I was a law professor, he told me with delight that both of his sons had expressed some interest in going to law school. I asked him about his daughter and he said that she would, of course, be a wife and mother and take care of the home. I expressed surprise at this (naive I know), and asked him what his teen daughter thought about these differing expectations based on gender. The man said that she didn't have a choice but in any event his daughter was quite comfortable with this life plan. I asked him if I could speak freely and he kindly responded in the affirmative. I asked him how he could possibly justify limiting his daughter this way especially in light of how proud he sounded about his sons wanting to be lawyers. His response was that this is the way they live, it works, and he saw no need to alter this lifestyle for his daughter.

Here is my question: if this man were nominated to be a federal judge, should his views on gender disqualify him from the position?

Before turning to that question, let's agree on one thing. A federal judicial nominee who in a confirmation hearing testified that he did not think women should be CEO's, Senators, lawyers, or bankers because their proper place is in the home and that we would all be better off with more precise gender roles would not be confirmed. 

Does the calculus change if the nominee testifies exactly the same way but says his views are based on sincere religious faith?

Hold that question.

Friday, May 13, 2022

Justice Aborted

 by Sherry F. Colb

Justice Samuel Alito (SA) has given us commentators a lot to criticize in the days following the leak of his draft opinion overturning Roe v. Wade and Planned Parenthood v. Casey. In this post, I want to focus on a phrase he uses in the draft: "aborted fetuses." Because the Movement for Forced-Pregnancy-and-Birth has regularly used this phrase (along with the meaningless propaganda term "abortion on demand"), it might sound like a proper usage, but I would contend that it is not. We abort a process that has just begun or that is in progress. We do not "abort" the endpoint of the process. To say "aborted fetuses" is to pretend that there is no process.

So what? you might ask. The Court is approving of reproductive servitude for women, including victims of rape and incest, and I am nitpicking about phraseology? I will now explain why the phrase that SA uses matters a lot.

Thursday, May 12, 2022

Normality and Increasing Awfulness -- Why Post-Roe Politics Will Not Save Democracy

by Neil H. Buchanan

Even the most casual reader of Dorf on Law is, I suspect, immediately struck by the pessimism infusing much of what we publish here.  The other day, I received an email from Professor Dorf under the subject line: "Our blog posts -- in cartoon form," providing a link to the latest from the indispensable satirist Tom Tomorrow.  Mr. Tomorrow (?) is capable of capturing in only six cartoon panels what a gifted writer would need at least six thousand words to convey (and that I would eventually cover in 15,000 words).

Misery loves company, and it is oddly heartening to see others who are as pessimistic as I am.  Maybe that says something about me, but in any case, I have lately been trying to think -- on (what I hope is) a deeper level -- about the sources of our well founded pessimism.  That is, much of my writing over the last several years has been a matter of describing the political mechanics that are in the process of killing our constitutional democracy.  But those mechanical processes have existed for a long time and are ultimately run by people.  The people who run them, however, are doing so in increasingly corrupt and shameless ways.  Why the change?
People tend to talk about "the new normal" of American politics, which allows us to contrast the current situation with the shattered norms of the past.  We also need to think about what has caused so many people not to care or even seem to notice that everything is different.  Unlike most of our conversations about this country's politics, this is truly a situation in which both parties are to blame -- but in very different ways.

Wednesday, May 11, 2022

The Aftermath of Carpenter v. United States

By Matthew Tokson

I recently wrote an article, "The Aftermath of Carpenter: An Empirical Study of Fourth Amendment Law, 2018-2021," forthcoming in the Harvard Law Review. The article looks at the state of Fourth Amendment law following the Supreme Court’s groundbreaking 2018 opinion in Carpenter v. United States. It analyzes hundreds of recent Fourth Amendment cases and identifies the factors that drive modern search decisions. It describes an emerging “Carpenter Test” that determines when the Fourth Amendment applies to government actions.

Essentially, this test looks to (1) the revealing nature of the data collected by the government, (2) the amount of data collected, and (3) whether a person has voluntarily disclosed their information to a third party. While other considerations sometimes arise, these three are the most influential and commonly used factors in modern Fourth Amendment decisions. They drive case outcomes in hundreds of frontier cases.

More broadly, courts have largely embraced Carpenter and its analysis, with almost no overt criticism and relatively little misapplication. The law is still developing, but Carpenter appears to be workable in the lower courts. That said, the aftermath of Carpenter highlights the surprisingly common phenomenon of “indirect noncompliance,” where courts intentionally misinterpret controlling precedent in order to reach a preferred outcome. A small percentage of post-Carpenter cases involve courts applying a strong version of a doctrine that Carpenter curtailed. These opinions may represent a small pocket of indirect resistance towards Carpenter. Yet judicial inertia towards a prior status quo is a common phenomenon following a major legal change, and its occurrence here is not too surprising. Judges confronting an unfamiliar new standard that raises decision costs and increases uncertainty are likely to favor the prior doctrine—at least until they grow more comfortable with the new one.  This effect has been observed in areas including criminal sentencing, patent remedies, copyright fair use, qualified immunity law, and many more.

Why "Pro-Life" Advocates Love Late-Term Abortions

 by Sherry F. Colb

Inspired by Justice Samuel Alito's (SA's) leaked opinion, I thought a lot about different kinds of abortions. Some, including medical abortions, take place very early in pregnancy. Others happen far later along. For Americans who do not take their position on abortion from religious doctrine, a late abortion is morally fraught in a way that an early abortion is not. Why? Because as a pregnancy progresses, the zygote, a simple one-celled organism like a paramecium, and a morula and blastula, clumps of undifferentiated tissue, grow into what increasingly looks like and acts like the baby it would eventually become. When the self-styled "pro-life" community march around with posters of allegedly aborted fetuses, you rarely see a picture of a zygote, blastula, or morula because no one sane would empathize with this reproductive tissue. Early abortions do not make for good copy. Indeed, an early abortion could look very much like a menstrual period.

So the "pro-life" folks need late abortions and photos (allegedly) of them to draw out a sense of empathy and outrage for the supposed "victims" of abortion. And what could be more upsetting for the viewer than seeing a metal instrument enter the uterus and tear a fully formed apparent baby limb from limb, followed by the crushing of that seeming baby's skull?

If all abortions took place very early in pregnancy, then the posters that urge forcible pregnancy and birth would have to either picture some cells (snore) or lie about what happens during an abortion. I would not ordinarily assume that a group of people is lying about their favorite topic except that I already know that they do. I recently watched Unplanned, a film that supposedly presented the truth about abortion. It involves a woman who worked at an abortion clinic but then saw what abortion really involved and switched sides on the issue. The lie? The overarching theme of the movie (which is absorbing if dishonest) was that the abortion clinic tries to pressure women who are unsure about whether to terminate into having the abortion so that the clinic can rake in the big bucks. In fact abortion providers often give women financial aid if they cannot afford to pay and almost any non-abortion medical practice will produce more profit and without risking the lives of the practitioners (because you never can tell when someone who is "pro-life" will decide to kill people who disagree with them). The big lie was the idea that people perform abortions for the great financial rewards. No one who does this work is in it for the cash. So if they lie about their adversaries' motives, then I cannot assume that they would tell the truth about early abortions.

Tuesday, May 10, 2022

Good Capitalists versus Vindictive Republicans

by Neil H. Buchanan 
"Sen. Scott calls for Biden to resign over inflation."  It is a cliche to say that something "made me laugh out loud," but wow.  Had anyone been nearby when I came across that Washington Post headline this morning, they would have been startled, to say the least.  That Rick Scott is one of my home state's US senators made the bitter humor even more pungent.

Scott, the former governor of Florida and admitted Medicare fraudster, is now spending his time in Washington pushing a Contract on America-like wish list of regressive policy proposals that his leader Mitch McConnell is trying to ignore until after the midterms.  That he views himself as qualified to speak about economic policy is amusing in and of itself, but the detachment from reality that has him calling for the President of the United States to resign because of relatively high inflation is beyond deranged.  At this point in his presidency, Ronald Reagan had presided over much more inflation than Joe Biden has, but sure, Biden should resign!

This small story, which does not even qualify for the news cycle equivalent of fifteen minutes of fame, offers as good an opportunity as any to talk once again about the Republican Party's war on capitalism.  Strap in.

Monday, May 09, 2022

In Defense of Enclaves

{N.B. This is a guest post by Antonio Haynes, discussing his love of Fire Island Pines.  He was prompted to respond to this article that appears in the New York Times.}

Antonio here. I am the other black man whose photograph the Gray Lady featured in Zach Stafford’s tendentious and self-indulgent recounting of his experience in Fire Island Pines. The narrative was peculiar to me because it was written by a black man who, by his own account, was a stranger to Fire Island. While I do not own property on the Island, I am a black gay man (effeminate, sometimes) who has not missed a summer there for more than a decade.  It is the only place on Earth where I am comfortable being all of myself. 

In every imaginable sense, Fire Island is a beautiful, inclusive place. Summer 2011 was the first time I ever lived in New York. As unknowledgeable and as unsophisticated as I may have been, all I knew is that I wanted to go to Fire Island.  To get there, I depended on my instincts, the kindness of strangers (often white), and my ability to figure it out.

Why Did SCOTUS Unanimously Find a Constitutional Right to Fly a Christian Flag on a City Hall Flagpole?

 by Michael C. Dorf

Today I'll talk about a case that the Supreme Court officially released last week. A unanimous Court, in an opinion by Justice Breyer, held that because Boston permitted secular groups to fly their flags on one of the three flagpoles in front of City Hall during permitted events, it also was required to permit a Christian group to fly its flag. The decision in Shurtleff v. Boston is arguably narrow. The U.S. Court of Appeals for the First Circuit had ruled for Boston on the ground that the display of a flag on City Hall grounds is government speech, and the government as speaker has much greater leeway to choose among messages it wishes to promote than it has as regulator of private speech. The bulk of Justice Breyer's opinion for the Court (in Part II) addresses this "basic question" of whether the government or the private group speaks by flying the flag. It concludes that the private group is the speaker.

However, that's not all that the opinion does. It also rejects the proposition that allowing the flying of the Christian flag (on a pole that is the same height as and adjacent to the poles flying U.S. flag and the Massachusetts flag) would violate the Establishment Clause. It then quickly proceeds to rely on the Court's free speech cases holding that government may not discriminate against religious speech to rule against the city.

In today's essay, I take issue with Justice Breyer's opinion in two ways: (1) The Court continues to treat government speech and private speech as though these are completely separate categories, rather than recognizing an intermediate category of mixed speech; and (2) the Court treats the federal First Amendment's Establishment Clause as the only legitimate source of church-state separation norms, thereby continuing the repudiation of an important principle--traceable to Chief Justice Rehnquist--that there is "play in the joints" between the two Religion Clauses of the First Amendment.