The Confusing Public Charge Oral Argument in SCOTUS

 by Michael C. Dorf

On Wednesday of last week, SCOTUS heard oral argument in Arizona v. San Francisco. After providing an account of the case, I'll raise a question that was suggested but not fully explored during the argument: Can a new administration acquiesce in a judicial ruling it believes is wrong as a legal matter but consistent with its policy druthers in order to short-circuit notice-and-comment rule making? So yes, today's essay is an 11 on a 1 to 10 scale of wonkishness.

Clarity: One of Our Parties Truly Does Want to Take from the Poor and Give to the Rich

by Neil H. Buchanan

 

With Vladimir Putin now unmistakably threatening to use nuclear weapons if he is thwarted in his takeover of Ukraine (and who knows what other countries), this is a grim day indeed.  The horrors happening in Eastern Europe necessarily dominate the headlines, and we all hope for the best while having a difficult time even fathoming what "the worst" might be.

Perhaps as a matter of denial or distraction, but mostly because I have no expertise in matters of war and peace, this column is not about any of that.  I will, instead, focus on what in any other time would be very big news: the Republican Party has admitted at long last that it is the anti-Robin Hood party.  If the world survives Russia's military assault, this will be a moment worth remembering, because the rich are not only going to continue to get richer, but Republicans are now even more unmistakably targeting the poor for further immiseration.

 

Did George W. Bush Set the Stage for Putin? A Concern, not an Apology or Whataboutism

 by Michael C. Dorf

The Soviet Union was a founding member of the United Nations in 1945. Interestingly, in a move that gave the Soviets three rather than just one seat in the UN, so were two Soviet republics. After the breakup of the Soviet Union, Russia took the primary Soviet seat (including as a veto-wielding permanent member of the Security Council), while the successors to the other two Soviet seats were Belarus (now reduced more or less to a Russian puppet) and Ukraine (currently the victim of Russian aggression). As a member of the UN, Russia has bound itself to the UN Charter, which states, in Article 2, Section 4: "All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations."

Accordingly, Russia's invasion of Ukraine, its recognition of independence for Luhansk and Donetsk, its prior support for separatists fighting there, its prior invasion of Crimea, its current claims to Crimea, and just about every other aspect of its threats and use of force against the territorial integrity of Ukraine are blatant violations of international law. This is not a close question. Nothing I say below should be taken as casting any doubt on the illegality or immorality of Russia's moves against Ukraine.

Is there a lie one can tell that, if true, would make Russia's actions legal? Putin could lie and say that Ukraine was in the process of attacking Russia and that therefore his use of force was an exercise of Russia's "inherent right" to use "self-defense" against "an armed attack," pursuant to Article 51 of the Charter. And indeed, along with the long distorted account of the fraternal history of Ukraine and Russia, the projection of all of Putin's own evils on the Ukrainian leadership, and just heaps of general-purpose lies, Putin's address on Monday did include a particular lie that, if not a lie, could be thought to invoke a Russian right of self-defense. He pointed to western support for Ukrainian defense against Russian aggression as evidence of an insidious plot to attack Russia.

Putin did not go quite so far as to say that such an absurd attack by Ukraine against Russia or Russians was underway, but anyone who has been paying attention for the last couple of decades will have heard in Putin's speech (as one apparently hears expressly in Russian state media) an echo of George W. Bush's case for pre-emptive war in Iraq to prevent Saddam Hussein from acquiring and using weapons of mass destruction.

Democracy or the Environment? The Hippie-Punchers Have Chosen Democracy, for All the Wrong Reasons

by Neil H. Buchanan

The fad of the moment is to fault Democrats for being "out of touch" with the presumed concerns of regular folks, who are supposedly turned off by "wokeness" and other right-wing tropes that the political media has uncritically adopted.  Washington Post columnist Jennifer Rubin calls these dire warnings to Democrats "tough love," saying that "[p]ollsters, analysts and campaign leaders are telling them they have overreached and ignored the legitimate cultural concerns of voters."

 

Although Rubin does not buy into the framing as much as others do, she is still amplifying a false narrative.  The idea that Democrats might lose in November's midterms because of "cultural concerns of voters" is both nonfalsifiable and an attempt to move the party away from what are in fact popular and easily defended positions.

 

But no, say the grim "facts don't lie" scolds, most recently evidenced in a study from the reliably "Democrats must be Republican-lite" Brookings Institution's political shop.  The tale they tell is that Democrats are refusing "to confront the unyielding arithmetic of electoral success."  This supposedly hard-nosed analysis, however, merely re-asserts the "What's the Matter with Kansas?" narrative as if it is somehow interesting or novel to note that some people vote on non-economic issues.

And how can Democrats win?  By running away from cultural issues, we are told, rather than taking a stand on them.  Ironically, what these quintessential Democratic insiders are peddling as they warn against "a new politics of evasion" -- in which the party has supposedly lost ground with voters by avoiding thinking about their cultural concerns -- is a strategy in which Democrats become completely evasive about cultural issues.

 

"Stop pretending that cultural issues aren't divisive" could, after all, mean that Democrats should make an affirmative case for their stands on cultural issues.  Instead, even though the scolds would not go so far as to say that Democrats should adopt Republicans' reactionary positions wholesale, the advice is to run away from defending people who are culturally vulnerable.  Why?  Because they are culturally vulnerable.

 

What is most interesting about all of this is that it is done in the name of saving democracy.  The impending death of democracy is a problem that I have been analyzing for years now, and it is real.  Notwithstanding my deep (and angry) disagreement with the self-styled moderates' repeated decisions to "punch the hippies" -- that is, to prove one's mainstream bona fides by finding this year's Sister Souljah or Lani Guinier to attack -- the new anti-progressive position is in its own way interesting, because it purports to be a strategy to save democracy.  Unfortunately, that strategy will in the end doom democracy, anyway.

Of Originalism, Political Polarization, Tolerance, and the Importance of Talking to the Other Side

 By Eric Segall

Last Friday and Saturday I attended the 13th annual Originalism Conference at the University of San Diego. There were seven papers presented by legal academics and discussed over two days in a room full of approximately 45 self-identifying originalists, two non-originalists (myself and Professor Tom Colby), and one person who as a matter of self-identification straddles the line (an ice storm in the Midwest and Covid issues led to slightly fewer non-originalists at the conference than usual). For the record, my guess is that most of the professors there were members of the Federalist Society, though that organization had nothing to do with the conference. 

I commented on six of the seven papers and, as you'd expect, most of what I said was critical of originalism in general and the way the papers used originalism in particular. Although there was the expected pushback from almost everyone in the room, the conversations were friendly, civil, and I think helpful to the presenters. In any event, the debates helped me get a better understanding of numerous legal issues and how originalists viewed them. There was also substantial and robust debate and disagreement between and among the 45 or so originalists, all in the service of healthy academic discourse. 

I am pretty sure Professors Michael Rappaport and Michael Ramsey, who run run the program, would appreciate me saying the conference is open to all and non-originalists and anti-originalists are more than welcome to attend and are even appreciated. Given how much originalist discourse is going to (sadly) be presented to judges in the future, I recommend this conference highly to everyone, especially those who believe, as I do, that judicial focus on originalism is quite undesirable. 

All of which brings me to Ilya Shapiro, Elie Mystal, the Federalist Society, and our current state of social media and academic discourse.

The Long-Term Stakes in the Remain in Mexico Case

 by Michael C. Dorf

On Friday, the Supreme Court granted certiorari in Biden v. Texas, setting an expedited briefing schedule that will result in an oral argument this April. A federal district court forbade the Biden administration from terminating the Trump administration's "Migrant Protection Protocols" (commonly called "Remain in Mexico" but which I'll abbreviate as MPP) under which undocumented immigrants presenting themselves at the southern border for admission as refugees or otherwise are temporarily removed to Mexico to await a hearing to determine their eligibility to enter the United States. The US Court of Appeals for the Fifth Circuit denied relief from the district court order.

The case presents two basic questions: (1) Whether MPP is required by statute?; and (2) whether the Fifth Circuit rightly rejected detailed memoranda memorializing the work done by the Biden administration's Department of Homeland Security to strengthen the case for MPP rescission in response to the initial district court determination that rescission was arbitrary and capricious? Here I'll consider each of them with an eye towards showing how--if one sets aside the particular context and supposes, perhaps naively, that SCOTUS would apply the same rules and standards to Republican and Democratic administrations alike--the ideological stakes are not entirely clear.

Is It Unconstitutional Discrimination to Scrutinize Idiosyncratic Religious Claims More Closely Than Conventional Ones?

 by Michael C. Dorf

After Justice Sotomayor, who serves as the Second Circuit Justice, rejected an emergency application from plaintiff NYC Dep't of Education employees challenging a vaccination mandate, the plaintiffs refiled (as is their right) with Justice Gorsuch, who in turn referred the petition to the full Court for consideration at its March 4 conference. The case presents some procedural questions about whether the defendants and trial court have been complying with an earlier appeals court ruling in the case, but I mostly want to bracket those issues to focus on the core claim of religious discrimination.

As the Second Circuit found, the policy as originally written is neutral on its face; it provides no religious exceptions but neither does it provide exceptions on secular grounds that might be a baseline against which one could argue that the absence of religious exceptions is discrimination against religion. A teachers' union objected to the absence of religious exceptions, and following arbitration the policy was changed to permit such exceptions. The Second Circuit found that the revised policy to emerge from arbitration does in fact discriminate on the basis of religion by favoring religious beliefs that are blessed by an organized religion against those that are idiosyncratic.

Here's the key policy: "Exemption requests shall be considered for recognized and established religious organizations [but] shall be denied where the leader of the religious organization has spoken publicly in favor of the vaccine, where the documentation is readily available (e.g., from an online source), or where the objection is personal, political, or philosophical in nature." As summarized by then-Mayor Bill de Blasio, if a NYC teacher, administrator, or staffer subject to the mandate is a Christian Scientist or Jehovah's Witness, they can get a religious exemption from the vaccine mandate, but given that the Pope has blessed the vaccine, Catholics cannot, nor can members of most other denominations and faiths, whose leadership accepts vaccination as consistent with religious doctrine.

Insofar as the policy is categorical--granting exemptions to members of faiths whose leadership decrees vaccination sinful but not to persons with idiosyncratic religious beliefs--the Second Circuit was clearly right that it amounts to religious discrimination. Supreme Court case law states that "the guarantee of free exercise is not limited to beliefs which are shared by all of the members of a religious sect." The threshold questions are whether a belief counts as "religious" and whether the person asserting it sincerely holds it.

However, to say that idiosyncratic religious beliefs are protected is not to say that it should count as religious discrimination to subject them to somewhat more exacting scrutiny than applies to officially sanctioned beliefs.

Why Is Everyone So Sure They Know What Harmed Children During the Pandemic?

by Neil H. Buchanan

 

What about the children?  Won't somebody please think of the children!  With all due respect to the fictional Mrs. Lovejoy, the problem is not that no one is thinking of the children.  The real problem is that people have no idea how to think intelligently about the children (or much else).  Combine that with general innumeracy, and we almost always find that the people wringing their hands about the fates of our young people are engaged in projection, wishful thinking, or simple political opportunism.

In my writing over the years about intergenerational justice (one of dozens -- if not hundreds -- of examples here), I have noted many times that anyone can turn any argument into a "for the good of the children and grandchildren" heart-string tugger.  And I do mean anyone making any argument.  Just this week, reports emerged about the mayor of a small town in the state of Washington who is a believer in a conspiracy that goes by the letter between P and R.

 

Explaining why his cause is righteous, he wrote (14:04 mark here) that his movement was "[e]xposing the evil and corruption of the last century in hopes of leaving a better future for our children and grandchildren."  That is, of course, why they need to stop the cannibalistic pedophile Soros-led Democrats.  Do it for the kids!

 

Every cult and every mass populist movement sees itself as saving the future.  And even in the more mundane confines of public policy, smarmy politicians say over and over again that those evil budget deficits must be reduced, lest we destroy "the next generation of Americans."  That particular quote was from Sen. Joe Manchin, and he offered it as part of his explanation for opposing investments in future generations' well-being.  How, he asks, can we possibly consider extending the child tax credit -- which has reduced child poverty and thus directly improves the lives of the next generation -- when it might be paid for with borrowed money (even though it would not have been, in the bill that Manchin single-handedly killed)?  The horror.

The latest fad among vapid politicians and the chattering class is to talk about the damage supposedly being done to children by school shutdowns or masks (or any other political target that they might want to drag out).  The evidence does show, tragically, that many children have been doing worse over the last few years.  Do we know why?  Could it perhaps be less simple than advertised?

Judge Rakoff's Inexplicable Announcement of His Intended JNOV in Palin v. NY Times

by Michael C. Dorf

Yesterday, the jury hearing Palin v. New York Times rejected Sarah Palin's claim that the New York Times defamed her when it falsely stated in a 2017 editorial (that it subsequently corrected) that Palin's promotion of a map showing congressional districts in crosshairs had inspired Jared Loughner to shoot Congresswoman Gabby Giffords. Presumably the verdict was based on the jury's conclusion that the Times did not act with "actual malice" -- the high threshold for liability to a public figure or public official under the First Amendment as construed by NY Times v. Sullivan and subsequent cases. That's that, right?

Hopefully so, but perhaps not, thanks to an unforced error by SDNY Judge Jed Rakoff, who presided over the trial. On Friday of last week, Judge Rakoff sent the jury to deliberate. On Monday, before the jury had concluded its deliberations, Judge Rakoff told the lawyers and parties that he had reached a conclusion: If the jury came back with a verdict for Palin, he would nonetheless enter judgment as a matter of law (JMOL) for the Times, because he had concluded that no reasonable juror could find that Palin had met her burden to show actual malice.

That procedure--in particular the announcement in advance of the plan to override a verdict for Palin--was a foolish gift to Palin's legal team, as I shall explain.

Deficit Panic Again? Self-righteous Pomposity and Empty Moralizing About Debt

by Neil H. Buchanan

 

Last Friday, a Washington Post news article ran under this headline: "House aides weigh deficit reduction as way to revamp economic plan for Manchin."  Given that Senator Joe Manchin's statements about fiscal policy over at least the last six months have been either confused or dishonest (usually both), this was one of those recurring moments of deep frustration that are familiar to anyone who knows anything about fiscal policy.  It is understandable that House Democrats would feel the need to offer to take Manchin at his word, trying to rework the Build Back Better legislation to win his vote by giving him a bill that would lead to "deficit reduction" -- even though the original legislation that Manchin has rejected was "paid for."

 

But it is also inevitably not going to work, because of Manchin's confusion and/or dishonesty.  Moreover, even if this does somehow win him over, it will be at the cost of kowtowing to economic illiteracy.  Long-term public investment spending should be paid for with borrowed funds, which is the way that state governments finance such spending (notwithstanding "balanced budget requirements" that governors brag about obeying) and that private businesses finance their long-term investments in future growth.

This has nothing to do with inflation, by the way.  Last week on Verdict (here and here) and on Dorf on Law (here and here), I indulged in a veritable orgy of analysis of the misinformation and confusion that is being peddled on the right, the center, and even in some places on the left about the recent uptick in US inflation (an uptick that is mirrored in other countries, making it clearly not the result of a US policy error).  But even if I were wrong and inflation in the US were as worrisome as others say it is, nothing that is at stake in the debate over spending and deficits in a stripped down (even more than it has already been stripped down) Build Back Better plan has any implications for inflation.  The amounts of money that would be spent each year in that bill (even if not paid for with offsetting tax revenues) are too small to have any nontrivial impact on inflation.

Yet the deficit story and the inflation story do have a common element: preening self-righteousness from those who complain about them.  There are, unfortunately, no backups in the supply chain that delivers uninterrupted nonsense wrapped in smug certitude among those who complain about economic policy when Democrats are in power.  The less the speaker knows about the issue, the worse it becomes.  And when the speaker's entire stock in trade is to deliver self-satisfied sermons about why other people must continue to suffer for the greater good, pronouncements about economics become a black hole.  Yes, this column will discuss George F. Will.

 

SCOTUS Voting Rights Case Foreshadows "Evil Day"

by Michael C. Dorf

In his concurring opinion last week in Merrill v. Milligan, Justice Kavanaugh, joined by Justice Alito, said that the 5-4 order staying the lower court's decision that Alabama's new congressional map violated the Voting Rights Act (VRA) was primarily based on timing, not the underlying merits. The concurrence (and thus presumably the majority) relied on the so-called Purcell principle, which generally proscribes judicial intervention too close in time to an election.

As Justice Kagan's dissent explained, however, the invocation of the Purcell principle was badly flawed in the Alabama VRA litigation. The plaintiffs and the district court acted with alacrity and a new VRA-compliant map could be drawn lickety-split, thereby allowing adequate time for primary campaigns and elections.

Indeed, I would go further to say that the Purcell principle itself should be renamed the avocado principle. The delicious but temperamental fruit (technically a berry!) from which guacamole and an expensive spread for toast can be made is unripe for days, then edible for about fifteen minutes before it turns rotten. So too, election litigation as constrained by SCOTUS doctrine is not ripe until it runs afoul of the Purcell principle. 

Yet while Merrill v. Milligan is thus chiefly an exemplar of the Purcell principle's shortcomings, it also holds dark hints about what the Court could do to the VRA and to antidiscrimination law more broadly.

Joe Rogan, Planet of the Apes, and How Vegans Think About Animal Insults

by Sherry F. Colb

Recently, Joe Rogan apologized. He apologized for his irresponsible COVID-19-related programming, and he apologized for using the N-word in the past. As a general matter, I like apologies when they are sincere (which they so often are not, unfortunately), and I have forgiven quite a few people for conduct that they authentically came to regard as unreflective of who they now are. A real apology is in a sense a commitment to be a different person in the future, one who would not have done what the person actually did.

Most amusing are the apologies that one hears from individuals with personality disorders (including psychopathy and narcissistic personality disorder). You can ask such people "why are you sorry?" or "what are you sorry for?" and they will consistently get it wrong. The reason is that they live to manipulate and hurt other people (only a slight exaggeration), and their apology happens only because they believe "if I apologize, then I won't lose the relationship/job/community-standing that I have effectively forfeited by my abusive behavior," and they know well enough not to own up to what is motivating them. Donald J. Trump, true to his personality disorder, very rarely apologizes and lies when he does. Lacking the capacity for empathy can be a real handicap. However, and to bring things back to Joe Rogan, he for the most part "got" what the problem was of throwing around the N-word like it was going out of style.

The one thing that Rogan appeared to deny, however, rather than to apologize for, was his statement that when he went to see a Planet of the Apes movie in a Black neighborhood and walked into the theater, he felt like he was in Planet of the Apes. Strangely, Rogan claimed that he never compared Black people to apes, but the recording of his doing precisely that could not have been clearer.

The Inflation Story Marries Complexity With Mendacity and Self-Righteousness

by Neil H. Buchanan

 

The latest inflation report was released this morning, and it was basically in line with forecasts, with the top-line number showing year-over-year inflation as of the end of January at 7.5%, up from 7.0% last month.  Because even the non-opinion reporting about this issue has been in hyperventilation mode for months, the press pointed out that the 7.5% estimate (and to be clear, the official reported numbers are estimates, subject to revision) was slightly above the consensus forecast of 7.2%, making the story about how "a key inflation measure [came] in higher than expected."

 

This week, I have already written two columns about inflation, one a two-parter on Verdict (published on Tuesday and today) and the other here on Dorf on Law on Tuesday.  In the two that were published on Tuesday, however, I tried to spend as little time as possible talking about inflation, even though the topic was in fact inflation, because I wanted to avoid boring my readers.  In today's entry on Verdict, I finally bit the bullet and tried to do the slogging work of explaining inflation, with the ultimate goal of showing that the Biden Administration's attempt to use the public's outrage over inflation for not-exactly-related purposes (increased antitrust enforcement) is necessary and appropriate.

I should say that I was truly surprised by how difficult it is to write about inflation.  My writing, both in purely academic articles and in the hybrid of popular and policy-wonk writing that I publish in my two online venues, is often addressed to very technical matters.  It is a challenge to explain the debt ceiling, or why budget deficits can be good, or the constitutional complexities of impeachments or the Twelfth Amendment, even to knowledgeable and intelligent audiences.  From the feedback that I receive, there is evidence that my efforts have been somewhat successful.

Because inflation has not been a newsworthy matter (or even a live topic among economists) for the entirety of my adult life, however, this week was a bit of a shock.  Having taught the mechanics and policy questions relevant to inflation in the 1980's and 1990's while I served on economics faculties, I knew that it was surprising to students to be told that most economists do not want inflation to be 0.0%, just as it was a surprise when they learned that unemployment -- even by the lights of the most aggressively pro-labor economists -- can never be anything close to 0.0%.  Beyond that, however, it is very esoteric stuff, and clarity is a serious challenge.

Stipulating that my perception of inflation being uniquely difficult to explain might be merely a matter of not having much experience doing so (at least recently), I do think it worth exploring how inflation's conceptual complexities open the door to old-fashioned lying (confusing people with loose talk) and self-righteousness.  That latter problem is the more infuriating.

 

In a classic example of making the perfect the enemy of the good, some commentators on the center-left have decided that President Biden must always hew to a technically correct description of inflation, even though what upsets voters about inflation has nothing to do with its pure definition.  Henry Clay famously said that he would "rather be right than be president."  Some people want Biden to be textbook-correct about inflation, no matter how much that confuses or frustrates people -- or how much political damage it would do.

 

If democracy itself were not on the line, this would be mere pedantry.  Even on its own terms, however, the critique of Biden's approach is beyond obtuse.

Do Equality Norms Constrain Presidential Appointments?

 by Michael C. Dorf

The right-wing freakout over President Biden's commitment to naming a Black woman to the seat from which Justice Breyer will retire is racist and hypocritical--as Professor Colb argued on the blog Monday. Still, it provides an occasion to interrogate longstanding practices of presidents in making SCOTUS and other nominations. In today's essay, I'll suggest three ways of understanding those practices.

But first, a brief description is in order. As numerous other commentators have noted, President Biden's commitment to naming the Court's first Black woman to the Breyer seat is hardly unprecedented. President Reagan promised to name the Court's first woman and delivered on that promise with Sandra Day O'Connor. Reagan also reportedly named Antonin Scalia at least in part because he was of "Italian extraction." Whatever President Bush 1 said about his selection of Clarence Thomas, everyone knows that it was important to Bush to name a Black Justice to replace Justice Thurgood Marshall.

Perhaps most glaringly, for some time it was common to speak of a "Jewish seat" on the Court. Two Jews (Brandeis and Cardozo) sat on the Court in the 1930s, but then the succession of Cardozo to Frankfurter to Goldberg to Fortas while no other Jews sat on the Court cannot have been a coincidence. And that's despite the clear language of the Constitution's Article VI: "no religious test shall ever be required as a qualification to any office or public trust under the United States." Yet from the 1930s through 1960s, it appears that there was an express religious test: only Jews were considered for the Jewish seat; only Christians were considered for the other eight seats; no Muslims, Hindus, Buddhists, or persons of other faiths were considered at all. (I set aside non-believers because I'm using religious identifiers here to reflect affiliation, not necessarily beliefs, although no self-described atheist has ever served on the Supreme Court.)

By applying a religious test and taking national origin, sex, and race into account in ways that go substantially beyond a plus factor, have presidents been violating the Constitution for decades?

The Multiple Levels of Hackish Political Commentary that Reinforce Conservatives' Preferences

by Neil H. Buchanan

There are few things more reliable and predictable than hack punditry on the right.  The world of opinion writing in general is highly insulated, and its gatekeepers sort for people who are not qualified to speak or write about anything in particular.  On the right, the added problem is that there are certain assertions -- what Paul Krugman has memorably labeled "zombie ideas," such as the repeatedly refuted (by evidence as well as logic) claim that tax cuts pay for themselves -- that right-wing pundits simply refuse to abandon.

As I have written many times, the problem is made worse by the asymmetry of left-leaning commentators' repeated willingness to adopt conservative framing for their arguments.  For example, I recently criticized the undoubtedly progressive MSNBC commentator/host Joy Reid for reinforcing the right's anti-deficit rhetoric.  Whoever sets the terms of the debate is at a huge advantage, yet the left tends to cede that opportunity again and again.

Why do they do that?  In my new Verdict column today, I use the recent politico-pundit freakout over an uptick in the US inflation rate as a lens through which to analyze this broader question.  I identify different levels at which the political discourse is ruined by unthinking adoption of the conventional wisdom, and I will add to that analysis here.

The big picture that emerges is that there is an endless supply of self-impressed conservative writers who hide behind safe claims that advance their political aims without being backed up by any actual thought.  And the result is that politicians -- especially Democratic politicians -- are hemmed in by what counts as "thinkable thought."  Whether it is deficits, inflation, going to war, or anything else, the American insider conversation is tilted toward right-wing nonsense.

The Audacity of Hoping for a 7-2 Majority

 by Sherry F. Colb

After Justice Stephen Breyer announced his planned retirement as Associate Justice on the U.S. Supreme Court, President Biden made the following announcement:"The person I will nominate will be someone with extraordinary qualifications, character, experience and integrity. And that person will be the first Black woman ever nominated to the United States Supreme Court." 

Predictably, right-wing histrionics were soon to follow.

Ilya Shapiro of Georgetown Law School had named his preferred choice from among Democrats (a South Asian man) and in response to Biden's announcement tweeted that Shapiro's choice "doesn't fit into the latest intersectionality hierarchy so we'll get [a] lesser black woman.” Because Biden had yet to select his nominee, the plain implication of what Shapiro said was that no Black woman exists who is as qualified as the man that Shapiro had recommended. 

Shapiro is now on administrative leave from Georgetown to allow the school to investigate his tweets. For what it's worth, I oppose the move to fire him for what he said. Sharing thoughts, including stupid and offensive thoughts, is what professors do. Having the freedom to get things wrong is what enables professors to sometimes get things right. Idea people need a "safe space" in which to think and write and speak, and firing people for what they say creates the opposite of a safe space. I would make the same point regarding the Georgetown adjunct professor who lost her job last year after twenty years of service for a private conversation over a hot mic. It would nice if Georgetown Law School figured out a way to express its disagreement other than by firing faculty members unprotected by tenure.

Nonetheless and despite my opposition to terminations for speech, I agree that what Shapiro said was offensive. Similarly but more blandly offensive was what Nikki Haley tweeted: "Would be nice if Pres Biden chose a Supreme Court nominee who was best qualified without a race/gender litmus test. That’s what I did when I picked Tim Scott as Senator of South Carolina."

Can Smart Utility Meters Give The Government a Look Inside Your House?

by Matthew Tokson

Information about how much energy a household consumes has historically been pretty unrevealing. It might be mildly embarrassing to run up a high energy bill, but beyond that it’s difficult to think of a less sensitive form of personal data. With the rise of “smart meter” technology, however, energy utilities and government agencies can increasingly use energy data to infer what happens inside of a home. Patterns of living, the use of individual appliances--virtually anything that uses electricity can be detected. Granular energy use data can reveal what the inhabitants of a home do and exactly when they do it. This is especially true when smart meters interface with smart home devices like Amazon’s Alexa. And police have already begun to use such data in criminal prosecutions.

At the same time, smart utility meters can provide enormous benefits. They promote efficient energy grid management, helping to mitigate climate change and increase consumer welfare. They allow utilities to constantly adjust energy flows, generate just the right amount of electricity to meet demand, adapt to pre-set consumer preferences, and give customers detailed feedback on their energy consumption. They also help utilities detect and rapidly respond to service outages and switch power on and off for individual households during natural disasters. Finally, smart meters enable the increased use of renewable energy sources and large-scale batteries on the grid. 

Smart meters present a conundrum for Fourth Amendment and privacy law. Public utilities have compelling reasons to collect granular data regarding household energy use. But allowing government agents to obtain detailed data about the home without a warrant seems unacceptable under the Fourth Amendment. And permitting sales of such data to commercial parties seems undesirable as well. How should we regulate smart utility meters in the era of big data surveillance--and the era of climate change?

The Strongest Argument that Democracy is Not Dying is an Extremely Weak Argument

by Neil H. Buchanan

 

Could it be true that America is not a dead democracy walking after all, and in fact that there is not even a danger of democracy dying at all?  Please let it be true!  Are all of us who are warning about the authoritarian turn in the Republican Party, coupled with its newfound willingness not even to be subtle about trying to make elections meaningless, a bunch of hand-wringing drama queens who have lost perspective?

No, of course not, but in one of those strange alliances that occasionally develop organically between some on the right and some on the left, an online bro discourse has emerged that is attempting to dismiss existential concerns about the fate of our constitutional democracy and the rule of law through mockery and ridicule.  In a recent column, I (accurately) described a right-wing columnist as relying on "adolescent snark," but clearly there is nothing stopping left-wingers from doing the same thing.

 

In this case, sadly, they are doing so not to fight their opposites on the right but to agree with them.  This is dangerous, because it tends to take the air out of any remaining attempts to rally people of good will to engage in last-ditch efforts to save us from spiraling into a sham democracy.

Ten Reflections on Teaching Roe and Casey (Maybe for the Last Time)

 By Eric Segall

I have been teaching Roe v. Wade and Planned Parenthood v. Casey since 1993. We are at that point of the semester where we cover these cases and I have realized I may not teach them again. Although my survey Con Law II course does review a few overturned cases, given how much there is to cover, if the Court dramatically changes the law of abortion this June, I doubt there will be time to teach these old cases or even if I do, I will do so quite differently. All of this caused me to reflect on these two landmark decisions, the many misconceptions people have about them, and my own views on abortion and judicial review.

The Contradictions of the Reagan Democrat/Trump Base Embodied in a Super Bowl Quarterback

by Neil H. Buchanan

The Super Bowl teams are set, and although I recently wrote that, "[o]ver the course of my life, I have almost entirely lost interest in everything sports-related except college football," it seems that I picked exactly the right year to pay attention to the pro football playoffs again.

 

Everything that is wrong with American football in general is still very wrong, and the pro game is generally unwatchable because of excessive commercials and planned mediocrity -- Which 9-8 teams will be among the 44 percent of teams that make the playoffs?! -- but this year's playoff games included more "wows" than I can ever remember, which is even more impressive because we tend to embellish memories from our youthful days.  Just two minutes at the end of one of the second-round playoff games was enough to give fans memories (even fans of the losing team) that will glow for years.

Sports cannot be separated from politics, of course.  Colin Kaepernick, for example, was robbed of a career and tens of millions of dollars because he engaged in peaceful protest (and note that his former team lost this past Sunday because their quarterback was simply terrible).  From the political angle, this was an excellent year because the obvious political bad guys all lost.  Aaron Rodgers's year of deceptions and anti-vax activism ended with a humiliating loss at home to that offense-free 49ers team.  Tom Brady (too many annoying items to list) lost at home as well.

 

And the Dallas Cowboys lost, too.  Why are they on this list?  They and their owner are, as far as I know, no more Trump-adjacent or awful than most NFL teams and owners, but they are still the Cowboys.  If you don't love 'em, you hate 'em.  I don't love 'em.

Here, I want to take a look at an issue that is more complicated than any individuals' public awfulness but that is very much political.  And in this case, at least as far as I know, the main character is a good guy.