Balancing and Deference: A Reflection on Justice Breyer

 by Michael C. Dorf

In my Verdict column last week, I characterized Justice Breyer as: (1) a fox--who cared about and was interested in a great many things--rather than a hedgehog--who knows one big thing; (2) a compromiser; and (3) a balancer, who, other things being equal, saw the virtue of flexible multi-factor standards as superior to fixed rules. Contrasting Breyer with the late Justice Scalia, with whom he often sparred during their long overlap on the Court, I expressed a preference, all things considered, for Breyer's standards and balancing over Scalia's rules and commitment to constraining judicial discretion.

That said, I freely acknowledge that going all in on standards has the downside that proponents of rules frequently discuss. Other things being equal, standards are less determinate than rules, so rules have the virtue of predictability--valuable for those who must conform their conduct to rules as well as to a society worried about vesting too much discretion in those (such as unelected judges) who must apply the standards or rules.

The Central Importance of Judicial Independence for Preserving Academic Freedom

by Neil H. Buchanan

There is a growing likelihood that Republicans will force universities to toe their party line.  Having long convinced themselves that higher education (and, more recently, even K-12 education) is a hotbed of leftist indoctrination, they will surely enforce their orthodoxy without compunction.  Rush Limbaugh spent years telling them that academia is one of the "four corners of deceit" (the others being government, media, and science, the latter of which is in large part carried out in universities), and now they are ready to act.

 

The irony is that Republicans view the statistics showing that most professors are registered Democrats as proof of political bias, but even scholars in the pure sciences are understandably aligning with Democrats in the face of Republicans' anti-knowledge hysteria (which has intensified in the last two years but has been brewing on the right for generations).  So Republicans' attacks on universities as being partisan only give people who pursue knowledge at universities more reason to resist reactionary efforts to control what they do.  And the party to which they turn is necessarily the Democrats.

Much to my chagrin, it appears that the first serious testing ground for this attack on academia is my institution, the University of Florida (UF).  As I explained yesterday, free speech and academic freedom won an important battle last week, when Chief Judge Mark E. Walker of the United States District Court for the Northern District of Florida issued a preliminary injunction against UF to prevent it from continuing to selectively enforce a standardless policy that can be used to prevent professors from testifying against "the state" -- and supposedly, therefore, the "interests of the university" -- as expert witnesses.  As I noted, Walker's reasoned ruling was simply masterful.

As I also pointed out, however, the judge's important work will almost immediately be undone by a hostile Eleventh Circuit, which also knocked down Walker's attempt in an earlier case to prevent Republican politicians in Florida from continuing to disenfranchise ex-felons (even after Florida's voters, by a margin of 65-35 in a statewide referendum, amended the state constitution to expand the franchise).  The opinion supporting that overruling was pure hackery, and the smart money is on the same thing happening again in this case.

Where will it go from there?  The future does not look good.

How Long Will the Recent Victory for Free Speech at the University of Florida Last?

by Neil H. Buchanan

 

In what can only be described as a scorching ruling, a judge in the U.S. District Court for the Northern District of Florida ruled last week that the University of Florida (UF) continues to be in violation of the First Amendment.  Formally, because Chief Judge Mark E. Walker's 74-page ruling granted a preliminary injunction, the judge did not rule on the ultimate question.  Even so, only the most obtuse reading of his scathing analysis would leave any doubt about where this case is going in his court.

I add those words -- "in his court" -- because this is almost certainly going to end badly for the professor-plaintiffs.  Before explaining why, it is worth recalling what is at stake in this case, which generated very negative worldwide coverage for my university late last year.  As I explained in two columns in November 2021, UF's reputation has taken a major hit.  Last week's ruling makes it clear that the administration's effort to clean up the mess was a content-free rewriting of an unacceptable policy.

This means that, no matter what ultimately happens in the courts or in the state capital, UF has squandered what was in fact a golden opportunity.  Had they acted wisely, the would not have stopped merely at undoing the damage by returning to the status quo ante.  They would also have used the university's time in the global spotlight to say: "We get it.  That was a mistake, and now we're going to become a global leader in protecting academic freedom."  Sadly, as Walker's opinion makes clear, the university's administration appears to have tried to rearrange the deck chairs on a sinking ship, not even trying to get back to where they had started, much less to make any effort to adopt a better approach.

And the global spotlight is not being kind.  The editorial page of The Washington Post -- hardly a "lefty" group, though one with an obvious interest in First Amendment issues -- highlighted the UF case in a lead editorial earlier this week.  Their blunt conclusion: "Here’s an idea: recognize that the mission of a university is to promote knowledge and understanding and not cower to the interests of the politicians in power."

 

Strong words, and well deserved.  Here, I will explain the part of the case that the plaintiffs lost, the reasons that they won the more important part of the case, and finally why this is going to be only a temporary victory for academic freedom -- in Florida and, soon, at state universities around the country.

Libertarianism as Constitutional Interpretation

 By Eric Segall

Last week on the Law & Liberty Blog, Professor John McGinnis, a self-identified textualist-originalist, wrote a love letter to the Supreme Court about its decision in NFIB v. OSHA, which invalidated OSHA's COVID vaccination rules and to one of the most important constitutional law cases in history Youngstown Tube & Sheet Co., v. Sawyer. In that case, the Supreme Court held that President Harry Truman could not seize the steel mills during the Korean War when a nationwide strike closed down the steel industry. The OSHA case is an administrative law case, whereas Youngstown is a constitutional one but the two decisions have one thing in common that McGinnis likes--courts striking down federal government actions during emergencies.

The title of McGinnis's post was "Jabbing the Administrative State." He wrote that the OSHA case may be "critically important" to the future of administrative law:

It potentially cabins the awesome authority of the modern administrative state to make impositions on our liberty in three separate ways: by circumscribing the deference that agencies get for their statutory interpretations, by forcing Congress to speak clearly if it wants to invest an agency with significant authority, and by requiring an administration to give the real rather than pretextual reasons for its administrative decision making. As with Youngstown, the decision was prompted by an emergency, but it is significant because it will apply a fortiori in more quotidian circumstances.

McGinnis gives the game away by being so delighted about the Court cabining the "awesome authority of the administrative state to make impositions on our liberty." Others might believe that the OSHA regulations requiring employers with more than 100 employees to either have them vaccinated or masked/tested was an important step to protect the American people from a terrible pandemic--a step courts should not second guess. But let's talk about the law instead.

Affirmative Action Proponents Concerned About the Cert Grants in the Harvard & UNC Cases Should Not be Reassured by California's Experience

 by Michael C. Dorf

Earlier today the Supreme Court granted review in two cases that pose the same question: "Should this Court overrule Grutter v. Bollinger, 539 U.S. 306 (2003), and hold that institutions of higher education cannot use race as a factor in admissions?" Recall that Grutter permitted the University of Michigan Law School to treat race as a "plus factor" in admissions, even as a companion case involving undergraduate admissions at Michigan rejected a fixed numerical score for minority applicants. Together, the cases converted what had been the de facto controlling view of Justice Lewis Powell in the 1978 Bakke case into the official doctrine. Cases since then have led to some sparring over the implications of the Grutter decision, but prior to the Trump appointments, the Court had adhered to the framework Justice Powell established.

But now potentially no more. To be sure, each of the two cases--one involving Harvard and the other involving the University of North Carolina--includes a second and narrower cert question that could enable the Court to invalidate the respective undergraduate admissions programs of each university without formally overruling Grutter. If you had asked me a year ago whether the Court would overrule Grutter and swiftly move to aggressively enforce a principle of "color-blindness," I'd have probably said no, the conservative super-majority would get there, if at all, in stages. That could still happen, but in light of the oral argument in Dobbs, the Mississippi abortion case, I'm now inclined to think that this Court won't be shy about anything. Within a year and a half, much of the landscape of constitutional law--from abortion to affirmative action to guns to the (lack of) deference owed administrative agencies--could look very different.

Because it appears that the Harvard/UNC cases will be scheduled for oral argument in the fall, there will be many more occasions for me and my co-bloggers to discuss them. For now I want to make one point: as the title of this blog post suggests, supporters of affirmative action should take little comfort from the experience of California since the 1996 ballot initiative Proposition 209, which banned race-based affirmative action in higher education (and other settings) in that state.

Actual Malice on the Supreme Court

 by Sherry F. Colb

In its review of certiorari petitions, at least one Justice called for a response to the petition in Coral Ridge Ministries Media, Inc.,d/b/a D. James Kennedy Ministries v. Southern Poverty Law Center. When the Justices are considering granting a petition, they always begin the process by calling for a response from the respondent. For this reason, if you are on the respondent's side of a case in which your opponent files a petition for certiorari, you can save your client some money and yourself some time by waiting for the Supreme Court's reaction to the petition. Based on past history, the Court will not simply grant a petition for certiorari without having read the opponent's response to the petition.

What makes the call for a response (CFR) to the petition in Coral Ridge Ministries noteworthy is the fact that the petitioner is asking the Supreme Court to overturn a First Amendment free speech precedent that has been with us since 1964, when the Court handed down its decision in New York Times v. Sullivan. Times v. Sullivan held that when a newspaper or individual speaks or writes about a public official (later expanded to include public figures), the public official may not prevail in a libel suit against the newspaper or individual unless the official can prove actual malice. The Court defines actual malice as circumstances in which (a) the speaker or writer manifested reckless disregard for the truth in publishing the account in question or (b) the speaker or writer knew that her statements were false.

What do these standards mean? They mean that if you write an article about a public official (or a public figure, under later cases) and you make a mistake, you are not liable for defamation to the subject of your story unless you were extremely careless about checking the facts before publishing them or you set out to make false statements about the subject out of malice towards him. This high threshold for defamation liability means that reporters who write stories every day can do their fact-checking and then publish without worrying that making an innocent error--which is eventually inevitable--could lead to a crippling lawsuit. With the threat of a lawsuit with every error, it would become costly and maybe impossible to thoroughly report on what is going on in our government and in other zones of power.

Because Times v. Sullivan was such an important ruling for free speech, it is alarming to learn that at least one Justice thinks it is time to reconsider it. Indeed, we know that both Justices Thomas and Gorsuch are skeptical about the legitimacy of the decision, as they indicated in dissenting from a denial of cert. in Berisha v. Lawson. If the two are able to persuade three colleagues of the wisdom of their position--or if Justices Alito, Kavanaugh, and Barrett simply want to join their teammates on a contentious matter, then another milestone in the development of our nation as a "free country" will fall. Perhaps not coincidentally, writing about the Justices, their venality, their prior history of sexual harassment or sexual assault, and their astonishing loyalty to the partisan commitments of the Republican party (including "vaccines bad; masks bad") will become harder if the Justices overturn Times v. Sullivan, leading state and federal courts to hold defendants accountable for the unavoidable errors that reporters sometimes make.

The Sports Talk/Political Talk Convergence of Dangerous Group-Think

by Neil H. Buchanan

 

In the days leading up to the moment when Joe Manchin and Kyrsten Sinema revealed that they honestly and truly are willing to allow constitutional democracy to die, a minor story hit the wires about the University of Alabama's football coach, Nick Saban, who was reported to have urged his longtime almost-like-family friend Manchin to support voting rights legislation.  The New Republic's daily newsletter mentioned the story, adding that this was a big deal because Saban's position probably would not go over well in beet-red Alabama.

It turns out that there was much less to this story than met the eye.  The Business Insider article covering the news -- which did, via its headline and opening paragraphs, make it appear that this was big news and meant what it appeared to mean -- described Saban's having signed onto a letter of support for federal voting rights legislation.  I had no idea that Saban had grown up in W.Va., but if there was that connection, then this was good news.

However, the article then notes that Saban insisted on adding a footnote to the letter that he signed, saying that "Coach Saban is not in favor of getting rid of the filibuster in the Senate. He believes this will destroy the checks and balances... ."  Unless "getting rid of the filibuster" is different in Saban's mind from suspending it for voting rights only (and there is no indication that it is), this is a big nothingburger.  Saban, in fact, fully supports Manchin's position, which is that he supports voting rights laws but is not willing to do what is necessary to pass them.  So just as Manchin has said all along, Saban agrees that he sorta-kinda wishes that we could save democracy, but not really.

The big lesson from this episode is that it is easy for people to fall for the Manchin two-step.  When The New Republic's editor fails to notice the deception (and, I should be clear, I and my friends did not notice it right away), we can see why this game works so well.  Here, however, I will use this as an opportunity to talk about college football, which I have not done on this blog in quite a few years.

Can We Predict What America's One-Party Autocrats Will Do?

by Neil H. Buchanan

 

I have no plans to move out of the United States, but I have been spending a fair bit of time lately writing about that topic.  And for obvious reasons.  Especially now that Senators Joe Manchin and Kyrsten Sinema have joined with every Senate Republican to end American democracy -- although Manchin somehow thinks that "the government" will protect voting rights, even without Congress requiring it -- pretty much nothing stands in the way of Republicans (mostly at the state level) now fully gutting voting rights, installing partisans in formerly nonpartisan counting-and-certification roles, and so on.

No matter whether I personally pull the plug, there are very important questions about what will happen after elections no longer matter in this country.  In a Verdict column last week ("Where to Move?"), I explored the question of expatriation generally, along the way inquiring whether the UK is on the same path as the US (making it pointless for an American to move there).  Soon after, in a column on Dorf on Law, I looked at Canada as an alternative, concluding optimistically that our polite neighbors to the north are not only nearby but might be (more) immune to the ill winds that have begun to sweep across other once-solid democracies.

 

Here, I will discuss what happens when a policy-free political movement seizes all of the levers of power and then has to make policy.  How can anyone, anywhere in the world, anticipate what Republicans will do at that point?

SCOTUS Was Right to Reject Trump's Effort to Block the January 6 Subpoena But Wrong to Call the Issues it Left Open "Unprecedented"

 by Michael C. Dorf

In a brief order today, the Supreme Court rejected former President Trump's request for emergency relief that would block the release to the House Select Committee on January 6 of various presidential records on grounds that they are privileged, notwithstanding President Biden's determination not to invoke the privilege. Trump's request in principle raised an important question: how much weight should a former president's attempted invocation of executive privilege be given in the teeth of the incumbent's rejection of that invocation?

However, as the Court also noted, the appeals court ruled that even giving Trump the same power to invoke executive privilege as an incumbent would enjoy, the House Select Committee subpoena prevails. After all, under United States v. Nixon, a president does not enjoy an absolute privilege; and per Trump v. Mazars, that's also true of a privilege asserted as against a congressional investigation. So Trump's latest application to the Supreme Court didn't present the important question of how to weigh conflicting claims by incumbents versus former presidents; Trump loses even under the most generous standard.

Yet the Court's order did not say that the issue that was ultimately not presented was merely important. The Court said that the key questions are "unprecedented." That's pretty clearly false. Although it's true that no prior case is exactly on point, one precedent is highly relevant, Nixon v. GSA. There the Court laid out the basic framework: the incumbent does not have absolute power to eliminate the privilege of a past president. "At the same time, however, the fact that neither President Ford nor President Carter supports [Nixon's] claim detracts from the weight of" his privilege argument.

The Winner of My Highly Unscientific Twitter Poll for Most Embarrassing Yale Law School Alum

 by Michael C. Dorf

No, that was not one of those clickbait headlines that requires you to scroll and click through dozens of pages and see hundreds of ads before you learn the answer to the teaser question (e.g., "Can you guess which Hollywood stars used this mustard-seed paste instead of plastic surgery?"). The winner of my Twitter poll question--which asked readers to "Vote for the alum who most embarrasses Yale Law School"--is Harvard's Felix Frankfurter Professor of Law, Emeritus, Alan Dershowitz. Please join me in congratulating the eminent scholar/lawyer/author who famously kept his underwear on when receiving a massage at Jeffrey Epstein's residence. Perhaps with this prize in hand, Professor Dershowitz's erstwhile friends on Martha's Vineyard won't shun him next summer.

Now for a few quasi-serious reflections about my silly poll, which I kept open for three days last week and into the weekend. Here are the full final results: 

A New (Read Old) And Improved 14th Amendment? Reviewing Barnett and Bernick's "The Original Meaning of the 14th Amendment"

 By Eric Segall

Imagine writing a 400+ page book titled "The Original Meaning of the Fourteenth Amendment: Its Letter and Spirit," but not discussing in any detail abortion, same-sex marriage, or affirmative action. Professors Randy Barnett and Evan Bernick (Barnett & Bernick) have written such a book, and while some have criticized it for leaving out perhaps the three most controversial public policy and legal disputes centered around the 14th Amendment, I praise the authors for their decision to leave those issues for another day. Given the primary goal of the book, to provide a scholarly account of the 14th Amendment's original meaning, and given their concession that courts today will need to construct doctrines that implement that meaning, which will be underdetermined in many (in my opinion most) cases, it was appropriate for the authors to duck those contentious questions. Accordingly, if you read this book, and you should, don't be disappointed that you won't find all the answers to burning modern disputes that arise under the 14th Amendment. The book has other plans.

Pretext Explains (But Does Not Justify) the SCOTUS Invalidation of the OSHA Vaccine Rule

 by Michael C. Dorf

Two days ago marked what would have been the 93rd birthday of the Rev. Dr. Martin Luther King, Jr. Today is the national holiday designated to commemorate his birth and honor his work. In past years, my co-bloggers and I have sometimes taken the occasion of MLK Day to reflect on racial justice (e.g., here) or other, too-frequently overlooked, aspects of Dr. King's legacy, including his anti-war and anti-poverty activism. I strongly support the call by members of the King family and other civil rights leaders to use today's commemoration to demand voting rights legislation essential to protecting what remains of democracy in America.

That said, although I discuss racial bias in policing below, today's essay is not principally about Dr. King's work. What is it about? I want to offer a hypothesis to explain the Supreme Court ruling on Thursday rejecting the OSHA rule requiring employers with 100 or more employees to require workers to be vaccinated or to submit to regular testing and wear masks. Although my Verdict column on Friday discussed the case, it did so primarily to contextualize my contention that Justice Gorsuch's decision to go unmasked on the bench called into question his ability to judge the issues in the case (and the accompanying Medicare/Medicaid case) with an open mind.

My hypothesis is that the OSHA ruling reflects a judgment by the majority of the Court that President Biden and his administration were using their power under OSHA pretextually.

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.

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?

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?

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.

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.

 

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).

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.

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.

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.  

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.

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.