Friday, January 14, 2022

The Connection Between Indecency and Political Nihilism

by Neil H. Buchanan 
Something very different has taken hold on the American right in recent years.  That change began to emerge long before Donald Trump's 2015 announcement of his presidential run, but it obviously intensified immediately thereafter and has only become worse nearly every day over the last six-plus years.  I have recently been describing that change as an outbreak of indecency, the borders of which are not bright lines but which is nonetheless much worse than garden-variety jerkishness (of which there is also no shortage these days).

In a Dorf on Law column on Monday of this week, I took a run at describing what makes indecency a categorically different problem for the country.  I spent some time describing why some truly bad behavior -- the most prominent example of which is verbal abuse of restaurant servers and other retail workers -- does not (usually) cross over the line into being indecent.

To this point, however, I had not invoked one of the most famous and effective uses of the decency/indecency concept, which happened at the lowest point of the McCarthy red scare in the 1950's.  Here, I want to bring that historical moment into the story and use it to further discuss why this metastatic indecency is distinct and dangerous.

Thursday, January 13, 2022

The Pope and Pets

by Sherry F. Colb

Last week, the Pope reportedly told an audience that married couples that have pets instead of children are selfish. Before you could say “He no play-a da game, he no make-a da rules” (Earl Butz's reaction to an earlier Pope refusing to endorse contraception as a means of reducing world hunger), social media lit up with debates about whether the Pope did or did not "have a point." I will briefly touch on the substance of these debates and then turn to a somewhat different but related argument that I have heard more than once.

Those attacking the Pope's words pointed out that (a) he does not have children, raising the question whether it is the absence of children or the presence of pets that triggers the charge of selfishness; (b) he lives in a palace surrounded by priceless art, suggesting that he also lives in a glass house; (c) our world is overpopulated, and the large number of children who then become grownups strains the carrying capacity of the planet, pumps carbon into the atmosphere, and threatens the extinction of many species, suggesting that the selfish choice is to reproduce rather than to refrain from doing so; and (d) why would a man who took the name of St. Francis of Assisi, the patron saint of animals, condemn couples who care for animals as selfish?

Wednesday, January 12, 2022

The Canadian Right: Adolescent Snark, Very Personal ad Hominems, and Laughable Bothsidesism

by Neil H. Buchanan
Should we all just move to Canada?

Last week saw a significant worsening of the already dire political situation in the United States.  Although Republicans had spent the last year trying to block or hobble investigations into the terrorist attack on the Capitol last January, some Republican leaders have been surprisingly honest that they were doing so simply because they thought that an investigation would harm their party's chances in the 2022 midterms.  Political cynicism on an issue of such fundamental importance takes one's breath away, but at the same time, it somehow feels almost normal and not norm-shattering.  They will do anything to win elections.  Full stop.

Now, however, it has become clear that there is something different going on.  It is not even worth going back over the much-discussed spectacle of Ted Cruz apologizing to the right-wing media empire for having correctly called the Capital attackers terrorists.  What is worse is that the new Republican line is that Democrats are pursuing this investigation merely for gratuitous fun, with various Republican politicians and Fox personalities referring to last week's commemorations as "like Christmas for Democrats" (or "the 4th of July," depending on who one listens to).  The new party line -- strictly enforced -- is that Republicans must say that domestic terrorists are not terrorists (so long as they support Donald Trump), and any effort to investigate the insurrection is itself an attack on America.

Frequent readers of Dorf on Law are by now accustomed to reading about my deep pessimism about the future of the rule of law and constitutional democracy in this country.  That pessimism is hardly a recent thing for me.  A few weeks ago, a friend reminded me that I had written a column back in June 2016 discussing the idea that people might decide to move out of the United States if Trump were to become president.  In that column, I devoted my analysis to asking where a would-be American expatriate might think about moving.

With the recent further intensification of Republicans' anti-republican efforts, now would be a particularly good time to revisit that issue.  Thus, I published a new column today on Verdict under the uncharacteristically short title: "Where to Move?"  There, I spent most of my time talking about the United Kingdom, even as I noted that the most obvious answer to that question is Canada.  Because that column was already so lengthy, I referred readers here, promising that I would address the more obvious possibility at length.  So, what about Canada?

Tuesday, January 11, 2022

SB8 and the Madisonian Compromise

 by Michael C. Dorf

With first-semester constitutional law grading behind me, I recently turned my pedagogical energy towards revising my syllabus for the coming semester's instantiation of my federal courts course. Federal courts is an advanced course in procedural law, with a focus on the jurisdiction of the federal courts and the relation between federal courts, state courts, and administrative agencies. It was more or less invented as a subject in the 1950s, although the leading cases date back to the early Republic. The course material is conceptually difficult and deeply puzzling. I try to give my students a flavor of the complexity of the law in this area while also emphasizing that what sometimes seem like maddeningly technical questions camouflage important policy disputes.

As with most law school courses, there is a canon of cases that doesn't change much from year to year, and then there are updates. For example, when I took the course (from the late great Dan Meltzer) in 1989, the Supreme Court had cut back on but not yet gutted federal habeas corpus as a mechanism for challenging state court convictions and sentences. Since then, Congress and the Court have made habeas a virtually empty vessel, making the teaching of the relevant material a bit like teaching Kafka's The Trial. There are procedures and forms but little discernible connection to justice. Similarly, post-9/11, cases involving habeas as a means of challenging executive detention (the original purpose of the Great Writ) played a more prominent role than when I studied the material as a student.

For this year's version of the course, I'm planning to open the first day with a brief summary of Whole Woman's Health v. Jackson -- the SB8 case -- because it raises the question of how there can be a constitutional right but no means of vindicating it. However, the opening day discussion will be mostly just a teaser, because there is no real way to understand all that's going on in the case without taking most of the course. Thus, the final reading for the course will be Whole Woman's Health v. Jackson itself and some notes and questions. In the balance of today's essay, I'll set out my initial first-day teaser questions, then reproduce a slightly modified version of the notes and questions I'll include in the final day's reading, and then riff on one of those questions.

Monday, January 10, 2022

Has Everyone Lost Their Decency? And What Does that Even Mean?

by Neil H. Buchanan

In a recent column, I used the word "indecency" to describe a comment from one of Dorf on Law's most persistent trolls.  Specifically, the troll in question tried to bolster his argument against women's reproductive rights not by making anything resembling a reasoned argument but by resorting to ad hominem attacks.  That in itself is not indecent, but one of those ad hominem attacks mocked a law professor who had recently written a searing column in The New York Times under the headline: "I Was Raped by My Father. An Abortion Saved My Life."
Even people who are eager to control women's bodies would, one think, at least acknowledge that some personal experiences are simply heart-breaking and deserve respect.  Not our troll, who decided that the better move was to sneer at the pain that the writer had bravely shared with readers of The Times.
That troll's mockery was one of the coincident events that led Professor Dorf to make the unfortunate -- but entirely appropriate -- decision to shut down comments on this site, as he explained in: "This is Why We Can't Have Nice Things: Blog Closed to Comments." Years of low-level trolling by various readers had recently accelerated and intensified, and it was no longer sensible to continue to provide a platform for that kind of ugliness.  Comments closed.

Here, I want to discuss the broader problem of this kind of indecent cruelty and lack of empathy (or even basic humanity).  Importantly, there is a difference between coarsening of social interactions and outright indecency, although of course there is no clear line that says when something has gone too far.

Saturday, January 08, 2022

Three Rationales for Vaccine Mandates

by Michael C. Dorf

Yesterday SCOTUS heard expedited challenges to the Biden administration's OSHA vaccine rules for workplaces (transcript here) and to healthcare worker vaccine rules for Medicaid/Medicare recipients (transcript here). I don't want to say there is nothing to the challengers' arguments. Surely they're right that it's a bit odd to use number of employees as a proxy for COVID spread risk. Hundreds of truckers each in their own long-haul cabs but working for the same company face substantially lower risk than 99 workers on a crowded factory floor; yet the OSHA emergency rule applies to the former but not the latter.

Still, I don't think that the lack of precise tailoring renders the rule arbitrary and capricious, given the deference ordinarily accorded administrative agencies. Nor are the challengers' other arguments at all good.

OSHA is empowered to protect workers' health (the word is right there in the name Occupational Safety and Health Administration), which does not mean it can't protect workers from risks that also exist "out there in the world" (as Chief Justice Roberts put it) if the workplace heightens them (or maybe even if it doesn't).

In any event, my main takeaway from the argument was rare sympathy for Justice Breyer's rambling. Although he has lately taken to rambling in every oral argument, he was understandably tongue-tied when, early in the OSHA argument he asked incredulously whether, in light of the Omicron surge's impact on cases and hospital capacity, the challengers were really asking for emergency relief at this moment. It's one thing when Tucker Carlson or Senator Ron Johnson talks as though a vaccine mandate, rather than COVID itself, is the emergency. It's quite another to hear that argument taken seriously by the Supreme Court. 

And yet, I agree with Amy Howe (on SCOTUSblog) and other observers who think the Court is likely to invalidate at least the OSHA rule. I might have more to say about the issues of statutory construction and administrative law after the decisions are issued, but for today, I want to say a little bit about three different kinds of rationales for a vaccine mandate.

I hasten to add that the Biden administration's rules aren't even vaccine mandates. They're conditions and choices (although the challengers in the OSHA case say that the testing alternative isn't real right now because of the scarcity of tests). In any event, I want to analyze a genuine mandate of the form everyone without a very good medical excuse (like a documented vaccine allergy) must be vaccinated. I do so to clarify the government interests that underwrite vaccine mandates. I'll use categories drawn from constitutional law because they are familiar and helpful, but my main interest is how to balance the underlying values as a matter of policy (which, as Prof Segall would likely remind us, is also what's going on in the constitutional analysis).

Friday, January 07, 2022

Today’s Column Delayed

 by Neil H. Buchanan

Note to readers: I am “up” as today’s columnist, but I am still recovering from whatever it is that I described in my column earlier this week.  Rather than run a Classic column today, I’ve decided to let you all know that I’m planning to post a column later today or tomorrow, making it a weekend read rather than the standard schedule.  I hope that everyone is doing well.

Thursday, January 06, 2022

Constitutional Law Exam 2021-- Featuring COVID, RLUIPA, Anti-Swiss Animus, and Executive Privilege

 by Michael C. Dorf

Per my custom, I paste below the exam I administered to my constitutional law students last month. It's less humorous than some of my past exams, but I was pleased with it anyway. Question 1 was worth 40% and each of Questions 2 and 3 was worth 30%. Students had a 2500-word limit for this open-book take-home and eight hours to complete it. Interested readers can take less (or more!) time if they so choose.

Wednesday, January 05, 2022

Is America Over? The View From the North

 By Eric Segall

As we approach the one-year anniversary of the right-wing, Trump-inspired (or led) attack on our nation's Capitol, both the traditional media and social media are full of worrisome predictions about the demise of democracy and representative government in America. As a glutton for punishment, I have been reading a bunch of these but the best I have seen is from Canadian scholar Thomas Homer-Dixon who, in his own words, studies "violent conflict. For more than 40 years, I’ve studied and published on the causes of war, social breakdown, revolution, ethnic violence and genocide, and for nearly two decades I led a centre on peace and conflict studies at the University of Toronto." 

His most recent essay, "The American polity is cracked, and might collapse. Canada must prepare," is clear-eyed, focused, and brilliant. This blog post summarizes the highlights (or lowlights) of this piece and adds a few thoughts of my own. I skip over the end of the essay where Homer-Dixon discusses what Canada needs to do to prepare for the possible demise of America's system of government.  

Tuesday, January 04, 2022

How "Mild COVID-19 Symptoms" Are Like Earthquakes and Unemployment

by Neil H. Buchanan

I am now almost recovered from a case of COVID-19.  I think.  My uncertainty is actually two-fold.  First, I am not certain that I ever had Covid.  And second, I cannot be sure that it is really ending.  Even so, my recent experiences, I think, will help clarify some aspects of this pandemic that are not widely appreciated.  Even if one stops short of being on one's deathbed, this disease can be terrifying.

Monday, January 03, 2022

Why Free Exercise on Steroids Won't Benefit Progressive Religious People

by Sherry F. Colb

As many people have noticed, the U.S. Supreme Court has been pumping up the Free Exercise Clause of the First Amendment over the last few years. In theory, Employment Division v. Smith, which demands only that government not discriminate against religious practice or religion, remains the law. In practice, however, the Court sees discrimination against religion everywhere--even when religion is simply not enjoying a special exemption from a generally applicable law--so the Smith standard is effectively an illusion. And even when the Court is not expressly invoking religion, it is subtly relying on its members' religious beliefs. The oral argument in Dobbs v. Jackson Women's Health Organization, an abortion case, is an example: the attorney pressing the Court to overrule Roe v. Wade relied very much on the belief that the raw materials with which women make babies inside their bodies, including zygotes and embryos, are already babies.  Justice Sotomayor called out this sleight of hand in asking the Mississippi Solicitor General, "How is your interest anything but a religious view... ? [W]hen you say this is the only right that takes away from the state the ability to protect a life, that's a religious view."

She is correct, of course, notwithstanding the religious right's stubborn insistence that "science" tells us that a zygote, a single cell that results from a sperm cell swimming into an egg cell, is a little person, a homunculus, a baby, a signal that reproduction has already happened rather than being the raw material that it plainly is. When virtually everyone who believes in a proposition is a religious person and virtually every secular person rejects the same belief as absurd, it is clear that we have before us a religious and not a scientific belief.

Wait a minute, though, say some progressives. Maybe we can use this pro-religion approach to help further moral objectives that matter to liberal and left religious people. After all, we could characterize much of the progressive agenda as religious in nature: feeding the hungry, housing the homeless, educating children, and treating outsiders with kindness and friendship rather than suspicion and judgment. My colleague Emeritus Professor Steven Shiffrin wrote a book premised on the idea of harnessing the religious left.

I even received a message from a scholar of Jewish law proposing that protecting the free exercise of Judaism might in some cases require the government to allow a woman to get an abortion. Here is the example: a woman is sick because of her pregnancy, but she is not in danger of dying. She is, however, becoming increasingly depressed because of the physical debilitation. In Jewish law, the raw material inside a woman's uterus is not a person until a designated stage of labor. Therefore, if a woman is sick and depressed because she is pregnant, she may have a religious obligation to terminate her pregnancy. With a robust protection of the free exercise of religion, couldn't this Jewish woman and her doctor obtain an exemption from a law prohibiting abortion?

My prediction is no. Am I saying that she should not receive an exemption? Of course not. I believe it is an Establishment Clause violation as well as a violation of any coherent notion of bodily autonomy to force a woman to be pregnant and give birth against her will. But the five devout Justices are so mired in their own narrow version of their particular religious faith that they do not even realize (nor are they open to realizing) that they are inflicting that version on the population rather than neutrally protecting all practitioners of religion.