Endorsement, Coercion, and the Nature of Legal Tests

by Michael C. Dorf

Constitutional law is replete with tests that are not literally found in the text of the constitutional provisions the tests implement. For example, time, place, and manner restrictions on speech on government property that is a public forum are permissible so long as they are content-neutral and leave open adequate alternative opportunities for speech. Race-based classifications by government are impermissible unless they are the least restrictive means of advancing a compelling governmental interest. Police investigative activity constitutes a search within the meaning of the Fourth Amendment if it violates a reasonable expectation of privacy.

None of the italicized phrases in the foregoing paragraph appears in the relevant constitutional text. And while conservative scholars and jurists sometimes complain (selectively) about courts reading into the Constitution concepts that its text does not contain, they routinely apply existing tests and often formulate new ones. Tests that go beyond the literal text of the Constitution are essential to, in the words of Professor Richard Fallon, implement the Constitution.

Why are there so many constitutional tests that go far beyond the literal language of the text? Partly because the U.S. Constitution is short, but also because life is complicated. Given enough time and cases, even a constitution that partook of the prolixity of a legal code would generate numerous tests.

Because tests play such an important role in U.S. constitutional law, the most hotly contested issues often play out as fights over tests. Should race-based affirmative action programs have to meet strict scrutiny or merely intermediate scrutiny? Should infringements on firearms possession be measured by strict scrutiny, intermediate scrutiny, or a direct examination of text and history? Etc.

And yet, tests may be less important than meets the eye, for at least three reasons.

What Is Still Worth Fighting For? How About People's Dignity?

by Neil H. Buchanan

 

In a recent Dorf on Law column, I offered a parenthetical observation at the end of the opening paragraph: "Ah, remember those halcyon days when people who tried to be sensitive to non-Christians' sensibilities were accused of waging a War on Christmas -- instead of today's preference on the right to attack non-conservatives as pedophiles?!"  Oddly enough, the topic of that column was tax policy, but it is in fact fitting that it somehow made sense to make a sarcastic remark about culture-war tropes even while writing about such a mundane topic.  The Republicans' grievance machine is working overtime, and it is flooding even unexpected corners of our existence with hate.

Even in the best of times in this country, it was not outright shocking when right-wingers would insult people on the left with weird personal attacks.  "Why do you hate America?" was their response to critics of the Iraq invasion in 2003, for example.  In my first semester as an untenured professor at George Washington University, I was giving a faculty seminar about fiscal policy, and a colleague (whom I had not yet met) asked me if I was in favor of the estate tax.  When I said yes, he said, "Oh, so 'from those who have the ability to those who have the need,' I guess?"  I laughed and said, "Well, I've been red-baited before, and I probably will be again."  To his credit, my colleague later came to my office and apologized (happily, not an "if you were offended" non-apology).

My point is that people criticize and attack each other all the time, and we always have, but even the outrageous stuff is now categorically different.  Questioning someone's patriotism because of a disagreement over justifications for military action, or calling them a Marxist/communist/socialist/poopyhead because they think (as Adam Smith put it) that "[t]here is no point more difficult to account for than the right we conceive men to have to dispose of their goods after death," is cheap and demeans the discourse.  But what we see now is so much worse.

 

Here, I will very briefly offer some thoughts on what individuals might do even as their country slides into one-party dictatorship and as the attacks from the increasingly unhinged non-majority insurrectionists become ever more personal.  In contrast to my writing about what it will be like to live in a post-democratic world in the sense of how our day-to-day lives and jobs might change, here I want to think about what matters even while the fight has become unwinnable, and after it is lost.

 

Contradictory Statutory Commands: "Remain in Mexico" Edition

 by Michael C. Dorf

Much of yesterday's oral argument in Biden v. Texas focused on statutory meaning. To oversimplify somewhat so I can get to my main point for today's post:

(1) A statutory provision tells the federal government that undocumented immigrants seeking asylum "shall be detained;"

(2) but Congress has never appropriated nearly enough money to pay for the cost of detaining all but a relatively small fraction of such asylum seekers;

(3) not withstanding the detention obligation, the same statutory provision states that the Attorney General "may return" asylum seekers to a contiguous country (i.e., Mexico or Canada) from which they entered, although of course the government cannot do that without the contiguous country's agreement;

(4) yet another statutory provision authorizes the Secretary of the Department of Homeland Security "in his discretion" to "parole" otherwise not-yet-admitted undocumented immigrants (including asylum seekers) "into the United States temporarily under such conditions as he may prescribe only on a case-by-case basis for urgent humanitarian reasons or significant public benefit."

The core issue in the case (apart from the procedural challenge to the Biden Administration's effort to change the policy) is how to fit these provisions together. (There's another provision involving bail, but it plays a minor role, so I'll ignore it for present purposes.) Texas, which prevailed in the lower courts, says that the baseline obligation is to detain asylum seekers; because the government cannot (given its funding levels) comply, it must use the alternatives; the case-by-case nature of parole makes that available for only a small number of asylum seekers, so the vast majority must be returned to a contiguous country--here, Mexico--pursuant to the policy dubbed "remain in Mexico."

The federal government argues that if this reading is correct, then every administration since the laws went into effect has been violating them, which is implausible. The federal government says that it does provide case-by-case review of each undocumented immigrant it paroles, so that is permissible, and also argues that the approach of the lower court and Texas would convert statutory discretion--"may" send to a contiguous country--into a mandate.

For what it's worth, I find the Solicitor General's argument persuasive. But for now, I want to ask what the Court should do if it finds neither side persuasive. In other words, what should the Court do if the various statutes Congress has enacted--including the under-funding laws--are simply incompatible?

'Doing Ideas': The Attack on Intellectual Freedom Takes a Weird Turn

by Neil H. Buchanan

The increasingly intense Republican efforts to energize their angriest voters with nonstop culture-war battles is truly a national effort.  Even so, because Republicans' power is currently limited to the state level, the action is happening in statehouses rather than in Washington, DC.  With hundreds of state-level Republicans -- those now in office as much as those who are trying to win party primaries -- trying to prove who is the Trumpiest of them all, one might imagine that it would be difficult to identify an epicenter of the most intense activity.

Please forgive me for this groan-inducing play on words, but there is an epicenter, and it is the home of Epcot Center.  (That was almost as bad as Maureen Dowd's typical column.  I am truly ashamed.)  Despite occasional efforts by Texas Republicans to take the lead, Florida is where the most extreme action is.  There is so much going on here that it is nearly impossible to keep up.  Today, however, I will focus on a recent effort by my state's governor to turn up the heat on my "industry": higher education.  It is both hilarious and scary.

The Roberts Court and the Erasing of the Establishment Clause

 By Eric Segall

The first amendment provides that the government may make no law "respecting an establishment of religion or prohibiting the free exercise thereof." Not too long ago, the Supreme Court took both parts of the religion clauses of the first amendment seriously. The Court, however, has now decided to breach the wall of separation between church and state by effectively reading the establishment clause out of the Constitution and by re-interpreting the free exercise clause to not only bar discrimination or punishment of religion by the government but also by forbidding states from relying on establishment clause concerns to justify keeping government and religion separate. The result is a theocratic Supreme Court imposing its strong religious beliefs on both the states and the American people. These dramatic changes have occurred not because of any change in constitutional text or new historical insights but because the Justices' values have changed. 

Not too long ago, the Justices restricted the types of aid that could be given to private religious schools by the government, limited the types of religious symbols that could be placed on governmental property, and forbade teacher-led prayers in public school classrooms, high school graduation ceremonies and football games. The Court has effectively given up policing the first two classes of cases and this week showed every indication that it is on its way to abandoning the third as well. This erasure of the establishment clause is coming as the Court is beefing up the free exercise clause so that it acts as a powerful trump card against important and secular governmental interests. The real-world effect of these lines of cases is to convert the first amendment from a constitutional provision protecting religious neutrality and freedom into a clause protecting religious supremacy. 

Don't Say Mickey: Crony Capitalism and the First Amendment

 by Michael C. Dorf

In a recent blog post, Professor Eugene Volokh considers the question whether Florida's imminent withdrawal of the very substantial legal benefits it had bestowed on the Disney Corporation--in obvious retaliation for Disney's opposition to Florida's "Don't Say Gay" legislation--violates the First Amendment. Although Professor Volokh's views overall could be fairly called center-right (with a strong libertarian streak) while mine could be called center-left, we often agree and sometimes work together (e.g., here) on free speech issues.

I find Professor Volokh's post characteristically thoughtful and balanced. He first sets out the precedents and principles that might lead one to conclude that Florida will violate Disney's free speech rights if, as seems likely, it revokes Disney's various privileges and breaks. Employee speech cases are most apt here. As a Justice of the Massachusetts Supreme Judicial Court, Oliver Wendell Holmes, Jr. famously wrote that a man "may have a constitutional right to talk politics, but he has no constitutional right to be a policeman." That view--that the greater power to deny someone a government job includes the lesser power to condition employment on the relinquishment of free speech rights--is not the current state of the law. Rather, modern case law recognizes that government employees have a right to speak on matters of public concern, except that if the speech is in the course of official duties, the government may limit that speech where it has an interest that goes beyond the (illegitimate) interest it has in limiting the speech of citizens who are not government employees.

After acknowledging the force of the government employee speech precedents, Professor Volokh suggests two grounds for concluding that Florida's impending actions relating to Disney might be different. First, he observes that, as opposed to the run-of-the-mill government employee, "officials exercising political power are generally not protected from retaliation by other political figures, at least when the retaliation consists of benefits conferred by the other political figures in the first place." The extraordinary powers that Florida has invested in Disney include those ordinarily reserved for government entities.

Second, Professor Volokh notes that Florida would be withdrawing special benefits from Disney that go well beyond "the sorts of contracts (there, for trash disposal) that pretty much any company could bid for," so that "withdrawing th[e company's "extraordinary"] status would simply put Disney in the same position as other companies in that geographical area, and the bulk of other companies in Florida."

Although Professor Volokh does not offer a bottom-line conclusion one way or the other about whether withdrawal of Disney's special status would be constitutional, I read him as tentatively leaning towards a conclusion that the withdrawal would be valid. Accordingly, I want to push back a little on the two lines of argument mentioned above to explain why I lean tentatively in the other direction--towards concluding that what Florida proposes to do is unconstitutional.

Ten Questions for Adrian Vermeule or How Scary is Common Good Constitutionalism?

By Eric Segall

A few weeks ago on this blog, I wrote a mini-review of Professor Adrian Vermeule's new book "Common Good Constitutionalism." At the outset, I stated my strong disagreements with Vermeule on important questions of women's and LGBTQ equality but also observed that his critiques of originalism, formalism, and right-wing attacks on the administrative state were thorough, smart, and extremely persuasive. I received pushback from many folks on the left terrified of Vermeule's alleged religious extremism but thought most of his work is for academics and little of it will actually matter on the ground anyway. 

I was probably wrong.

I engaged in a debate last Thursday on Originalism sponsored by the University of Cincinnati Student Federalist Society and the Cincinnati Lawyers Federalist Society Chapter. My sparring partner was a seasoned and extremely smart litigator, and the moderator was Judge John Bush of the Sixth Circuit, who had suggested we talk about Vermeule's work during the debate. I skeptically asked both the Judge and the lawyer if they thought common good constitutionalism had any valence or relevance for the students and lawyers in attendance. They both were adamant that it had. Additionally, over the last few weeks, I've noticed a huge uptick on social media both among academics and others talking about common good constitutionalism as well as more book reviews, essays, etc., on Vermeule's work. I also was recently invited to participate in a book group discussion among academics covering his work. 

Like I said, I was probably quite wrong about the limited reach of common good constitutionalism and my belief that Vermeule's excellent critiques of originalism and formalism can be separated from his moral and religious visions, which I find quite troubling.

Republicans' Increasingly Anarchic Extremism Is the Mutant Spawn of Anti-Tax Zealotry

by Neil H. Buchanan

There was a time when conservatives could plausibly claim to favor law and order.  Although that was always deeply infused with racism and included a lot of nodding and winking at various types of atrocious behavior (see, for example, the excuses for privileged White males to get away with sexual assault, because "boys will be boys"), they were at least able to say with a straight face that they wanted (most) laws to be enforced and that (most) people should live by the law.

That is plainly no longer even arguably the case, but how did the change happen?  As it turns out, the area in which conservative politicians began to be openly contemptuous of law and order was taxes.  Lacking the political will to cut rich people's taxes as much as they wanted, the next best thing was to make everyone hate taxes and tax enforcers so much that there would be revulsion against the very idea of enforcing taxes.  Although Donald Trump is an extreme outlier in many ways, he was walking on a path that Republicans had cleared and paved for years when he said that not paying taxes "makes me smart."

 

If "smart" people (which actually means people with enough money to take advantage of giveaways to the rich) can legally avoid paying taxes -- which is not to deny that Trump was also breaking the law outright -- one might hope that we would want to change the law to force them to pay taxes.  We also would want to enforce the law more scrupulously.  Instead, Republicans count on the public's hatred of the Internal Revenue Service to create cover to allow the richest Americans to get away with paying nothing.

Earlier this week, I wrote a column describing how the IRS, against all odds and under very bad circumstances, has been able to set up a surprisingly smooth system for people to submit their tax forms.  Even though that is a genuine achievement, I added that this should all be unnecessary, because there is no good reason why the tax system should require even a tiny fraction of the time that ours imposes on this country's citizens.

 

Republicans affirmatively want to make the tax system frustrating and annoying, and they have been doing this for decades.  And I should add that, even after Republicans soon succeed in creating a one-party autocracy, there is no reason to think that they will make tax life easier for most citizens.

Here, I want to expand the inquiry to ask why the current system is as bad as it is.  I will conclude by connecting some dots between anti-tax zealotry and the increasing insanity across the board among Republicans.

Valuing Sentient Life, Not DNA

 by Sherry F. Colb

[Note to readers: The following is the text of remarks I recently made on the Think Like a Vegan podcast. If you prefer to listen rather than read, you can do so here or on the Think Like a Vegan feed on Apple podcasts, Spotify, or Stitcher.]

When I first became vegan and told people about it, I ended up hearing many surprising questions. Some of the questions came from sincere curiosity, and I think some might have come from resistance. I remember not being vegan and wanting to come up with a question that would stump vegans and lead to the conclusion that I could continue to eat animals and their reproductive secretions. Regardless of why someone was asking a question, I tried to treat both the person and her question with respect. Getting angry, annoyed, or impatient in response to questions would surely turn people off veganism. If we are having a conversation about it, then change is possible.

The question I want to talk about today is some version of the following: If you believe that animals who are less intelligent and cognitively complex than humans deserve rights, then what about human embryos and fetuses? They too might have claims of right, and does that mean that an animal rights advocate should also favor embryonic and fetal rights? I have thought a lot about this question, in part because I have been pro-choice since I was old enough to have a position on the issue. If favoring veganism and animal rights as I do meant opposing abortion, I was confused about how to handle the cognitive dissonance. Were human embryos and chickens in the same boat?

People Should Not Have to Waste Time on Tax Filing, But Republican Politicians Like it This Way

by Neil H. Buchanan

Yesterday, April 18, was the last day to file returns with the IRS for the 2021 tax year.  Well, not really, as I will explain below, but that is how this is generally reported in the news.  Normally, April 15 would have been the relevant date, but because that fell on Good Friday this year, the relevant decision makers decided that the US Treasury should not wage a War on Easter and thus pushed the filing date back.  (Ah, remember those halcyon days when people who tried to be sensitive to non-Christians' sensibilities were accused of waging a War on Christmas -- instead of today's preference on the right to attack non-conservatives as pedophiles?!)

There are two competing points that I want to make here about tax filing.  First, it is nowhere near as difficult as people make it out to be, with the IRS doing an amazing job of simplifying the process, against all odds.  But second, tax filing should be nowhere near as difficult as it still is -- and the reason it continues to be needlessly difficult is entirely the doing of the Republican Party, which continues to pursue its stealth-tax-cuts-for-the-rich strategy that long predates Donald Trump's time in electoral politics.

Putting the Text in Originalism: Three Odd Amendments

by Michael C. Dorf

Regular readers of this blog and/or my scholarship know that I am a longtime skeptic of constitutional originalism. I've expressed my skepticism in numerous places, but you can find a fairly concise explanation at pages 696-701 of this article in the Catholic Law Review, which reproduces remarks I delivered at a 2019 Federalist Society panel with Professors Sai Prakash and Rick Pildes, as well as Judge Thomas Hardiman and then-Judge (now-Justice) Amy Coney Barrett. Here's an even shorter version:

I regard "old" originalism, which focused on the intentions and expectations of the framers and ratifiers, as unjustifiable in principle; so do most self-described originalists. I regard "new" originalism, which focuses on the constitutional text's original public meaning, as a substantial improvement in theory but extremely under-determinate in the kinds of contested cases in which it is typically invoked, and thus ultimately unhelpful. If jurists who call themselves originalists believe that their linguistic and historical analysis plays a large role in how they decide contested cases, they are fooling themselves. Appellate and especially Supreme Court litigation has a selection bias for cases in which authoritative sources of law do not uniquely determine the outcome, making other factors--especially each judge's values and ideology--critical.

Indeed, it's not even clear to me how much thoughtful originalists really are fooling themselves. For example, during the colloquy on the panel I mentioned above, then-Judge Barrett said both in her opening remarks and in conversation with me (at p. 709) that originalism as she understands it is not designed to constrain judges and doesn't especially constrain judges, or doesn't do so to a substantially greater extent than other approaches to constitutional interpretation and construction.

I confess that if originalists think that originalism provides no further constraint than other interpretive approaches, then I don't understand what originalism is. Accordingly, I heard and read then-Judge Barrett to be saying that treating original meaning as fixed and, where determinate, dispositive, provides a bit more constraint than interpretation that proceeds without doing so. I'm not sure even that very modest claim is accurate in practice, but I agree that it could be true in principle. Historical and/or lexicographical investigations will sometimes yield a more determinate meaning than the face of the text indicates. In any event, although I'm not an originalist, I am a student of history, and even we non-originalists believe that original meaning plays an important role in constitutional interpretation.

We sometimes describe the original understanding as a useful "starting point," but that's not quite right. Surely the starting point is the constitutional text. And that leads me to my main point for the day. The courts--including self-described originalists--treat three odd-numbered constitutional amendments in ways that cast doubt on their commitment to following the text's meaning wherever it leads.

Good Riddance to Presidential Debates (Democracy Is a Goner in Any Case)

by Neil H. Buchanan

Yesterday, the Republican National Committee voted unanimously to stop working with the Commission on Presidential Debates.  This is the same committee that, less than two months ago, censured Congresspeople Liz Cheney and Adam Kinzinger, a resolution that "passed overwhelmingly on a voice vote without debate or discussion."  That resolution also infamously included the claim that the January 6 rioters were engaged in "legitimate political discourse," an outrageous assertion that the RNC's chair then tried to explain away (rather unsuccessfully).

We are not, in other words, talking about a group of political leaders who are known for putting country above party or even for being grounded in reality.  Basic decency used to be optional (albeit disadvantageous) among that group, but now it is disqualifying.  Even so, because the decision to withdraw from future presidential debates is a matter of pure political strategy rather than some larger question of right or wrong, there is in this context no reason to think that they should take anything into account beyond pure political advantage.  That, after all, is what a national committee for any party would spend most of its time doing.

 

But no matter whether that decision is good or bad for future Republican candidates, maybe I am wrong that this will not have important impacts on the rest of  us.  Is it possible that their decision is bad for our system of government and the rule of law?  Despite some hand-wringing among well meaning people (which I will summarize below), I believe that is in fact a good day for America.  At worst, it is a push.  Yet that seems counterintuitive.  How can debate not be a good thing in a democracy?

Law School Rankings and the Assault on Higher Education (or, Why Is Florida Doing so Well?)

by Neil H. Buchanan

The cynical game of ranking universities, colleges, and their sub-units has been destroying higher education for decades.  Although it is understandable that people would hope to find an objective method by which to compare different institutions ("Should I pay to send the twins, Missy and Trip, to College A or University B?"), no such method exists -- nor could it exist.  The entire enterprise has too many moving parts, and the people who rely on rankings have too many different goals and motivations, to make rankings meaningful.

 

And although it was once defensible to say that the perfect -- the Platonic ideal of comparatively measuring institutions' relative quality -- should not be the enemy of the good -- having at least a workaday, rough estimate of comparative quality, so that we could confidently claim that say, UCLA is superior to Florida State but that UCLA and Michigan cannot meaningfully be ranked relative to each other -- we quickly discovered that people want granular rankings and will treat one-slot differences as hugely meaningful.

Even worse, once it became clear that this entire inquiry could be turned into a profit center, one of the major news magazines in this country essentially became a rankings factory with a side gig in journalism.  And USNews soon learned that it could further increase profits by making sure that there is movement within the rankings from year to year, to generate interest and legitimacy.  Even so, they cannot allow the rankings to change too much, because that would make people think that the rankings are volatile and unreliable.  Again, it is all very, very cynical.

Not that this is new to anyone, but there is a twist.  Here, I want to comment on the recent release of the new law school rankings, focusing in particular on what happened -- or, more accurately, what did not happen -- to the ranking of my employer, the University of Florida Levin College of Law.  I do so not out of parochial interest but to make a counterintuitive point about how the toxic political enviroment in my state is running up against the incentives created by the USNews juggernaut.  Short version: USNews might (inadvertently but thankfully) be shielding state universities from politically motivated attacks by angry culture-war conservatives.

An Unfulfilled Promise of Religious Exceptions

 by Michael C. Dorf

In my latest Verdict column, I discuss two recent Supreme Court cases, decided one day apart. In a case on the plenary docket, Ramirez v. Collier, the Court held that Texas could not deny a condemned man the right to have his pastor lay hands on him and pray audibly in the execution chamber, thus granting a religious exemption from the (unwritten) Texas policy at issue. The next day, in a shadow docket order in Austin v. U.S. Navy Seals 1–26, the Court rejected the religious objections of a group of Navy Seals to mandatory COVID-19 vaccination.

Ramirez applied the Religious Land Use and Institutionalized Persons Act (RLUIPA); Navy Seals applied the Religious Freedom Restoration Act (RFRA); because the substantive test of the two "sister statutes" is identical, the juxtaposition raises a question. As Justice Alito--who joined the eight-justice majority in Ramirez--suggested in a dissent in Navy Seals, it looked like the Court was granting greater religious rights to a convicted murderer than to patriotic U.S. service members. My column offers some possible grounds for reconciling the two cases and thus rebutting Justice Alito's wildly implausible suggestion.

Here I want to discuss religious exceptions more broadly. I'll offer a hypothesis to partly explain why the bipartisan consensus in favor of religious exceptions that produced RFRA and RLUIPA in the 1990s has mostly evaporated. I'll then reconsider Ramirez in light of some roads not taken.

A Bitch, a Cow, and a Pig Walk Into a Bar: Why Misogynists Animalize Women

 by Sherry F. Colb

[Note to readers: The following is the text of a lecture I delivered last week as part of an online conference. At this link, you can view the lecture--which is pretty much a verbatim statement of what appears below followed by Q&A]

----------

To fully understand what happens when misogynists call women “bitches,” “cows,” and “pigs,” we need to begin with what has been the cardinal sin in science for many years: anthropomorphizing. To anthropomorphize in the prohibited way means to attribute supposedly uniquely human attributes to nonhuman animals. People writing for science journals were not supposed to say that an animal they had tortured “suffered” or that an animal reunited with a family member experienced “joy” or “pleasure.” Scientists could say that animals experienced “pain” because experiments often aimed at causing and then relieving pain, but “suffering” referred to a supposedly higher level experience special to humans. In some circles, it is even verboten to refer to a male animal as “he” or “him” or to a female animal as “she” or “her” when the preferred term is “it.”

Though scientists were the ones most committed to such linguistic censorship, there was nothing scientific about it. Nonhuman animals have the same basic brain anatomy, circuitry, and chemistry as we do. They suffer, they feel joy (when we are not slaughtering them), and their emotions—once you are around them for a bit—are quite clear and mirror our own. Indeed, and sadly, they feel empathy for us and react to our suffering, though scientists often seem incapable of returning that empathy. In one experiment, a scientist observed that the stress levels of rats in their cages rose when one of their number was taken out and decapitated. I say “sadly” because watching, let alone carrying out, the killing of an innocent animal appeared to have no similar impact on the human scientist.

Recency Bias and the Supreme Court as a Broken Institution

By Eric Segall

Despite last week's confirmation of Judge Ketanji Brown Jackson to replace Justice Breyer on the Supreme Court, a moment worthy of celebration, there is still an ominous despair on the political left about what the six-three conservative majority on the Court will bring our way over the next few (or many) years. This dread is justified. The Court is on the road to decimating women's reproductive freedoms, enlarging gun rights, ending affirmative action, and cutting back the administrative state to assist big business and multi-national corporations. 

These likely results, in addition to Senator Mitch McConnell's norm-breaking manipulation of the confirmation process, led to President Biden's Supreme Court Reform Commission and have sparked hundreds of essays, blog posts, and articles lamenting the current Court and advocating numerous fixes, including packing the Court, stripping the Court of jurisdiction, and maybe even disobeying the Court. I am sympathetic to all of these reforms but not because the Court's politics are different than mine but because the Court has needed this reform for a long time. 

Liberals and progressives would be better off focusing on the history of the Court than current events to support their calls for reform. The reality is that the times we live in are not unusual when it comes to controversies surrounding the Court. Recency bias has played a large role in the thinking of Court watchers that we are in more difficult times than ever when it comes to the Justices' decisions. But the truth is that the Court has been broken for well over 150 years. The Court needs to be fixed not because it is too conservative or at times too liberal but because we should not allow unelected, life-tenured judges to play such a large role in our country's politics. And that problem is anything but new both in terms of degree and kind.

Question Averted: Can the Vice President Break a Tie Vote on Appointments?

 by Michael C. Dorf

The confirmation of Judge/Justice-in-waiting Ketanji Brown Jackson to the Supreme Court is good news for the Court and the country. It also means that we don't have to face a question that has been never fully resolved: If the Senate deadlocks on a Supreme Court appointment, can the Vice President cast a tie-breaking vote in favor of confirmation?

Spoiler alert: Below I'll conclude that the answer to that question is probably yes, but along the way I'll explain why there really is no fully determinate answer. I'll then locate that fact in a somewhat broader context concerning the Constitution's ambiguities.

The Big News Organizations Naively Play Footsie with Trumpists, but Why?

by Neil H. Buchanan

 

What are the major media organizations thinking?  It is hardly news that the "corporate media" (as people on the left refer to them) have always taken a soft stance on the issues that truly matter to the moneyed classes.  The major papers and networks have hidden behind false equivalence and bothsidesism since long before those two terms had even become part of the popular lexicon, but the big players are most notable for not rocking the boat.

 

It is barely necessary for Republicans to "work the refs," given how eager the mainstream media are to be played.  Early in Donald Trump's White House occupancy, a top editor at The New York Times announced with great solemnity that his newspaper was not part of The Resistance, saying that doing so would be "an untenable, non-journalistic, immoral position for The New York Times."  Immoral.

 

In some recent columns (most recently here, with internal links to earlier pieces), I have been writing about the immoral choices that the editors of The Times and others have been making.  They are not only agreeing with and amplifying the right's culture war tropes about "cancel culture" and "silencing" conservatives but continuing to reward young conservatives by airing their grievances. 

 

Recently, for example, a student at the University of Virginia was given space on the op-ed page to say that when she expressed her opinion in class, "[t]he room felt tense. I saw people shift in their seats. Someone got angry, and then everyone seemed to get angry. After the professor tried to move the discussion along, I still felt uneasy."  Stop the presses!  "I was shaken," she wrote, "but also determined to not silence myself."  How brave for a twenty-year-old to be confronted with disagreement -- people were shifting in their seats, mind you! -- but decide to persevere.

What is going on here?  Why are the most powerful voices in journalism playing this crazy game?

Teenage Dating Habits

by Sherry F. Colb

If I were to try to identify all of the offensive, outlandish, and horrifying things that happened during the confirmation hearings for Judge Ketanji Brown Jackson, I would be writing for several hours. I could focus on the overt racism of assuming that Judge Jackson, according to Senator Blackburn, thinks that judges must rely on critical race theory (CRT) in making judicial decisions. Why would anyone imagine that Judge Jackson believes such a thing? The answer is a mix of out-of-context quotations and the fact that she is Black, and some of the senators were ready to presume that all Black people who aren't attempting a coup must be disciples of Ibram X. Kendi.

Likely for the same benighted reason, Senator Cruz asked Judge Jackson whether she believed in racist babies. It turns out that Kendi, a fellow Black person, wrote a book called "Antiracist Baby," so Judge Jackson must believe in racist babies. No one admitted, of course, that they were acting like good old fashioned racists, but no one had to. I stayed away from listening to much of the hearings because I found the behavior of Republican Senators intolerably offensive and disgusting. For similar reasons, I avoid watching reality shows in which the objective is for the "star" to consume as much vile food as possible.

Hiding a Giveaway to the Rich Behind False Populism

by Neil H. Buchanan 

 

The Biden White House included in its new budget proposal, at last, a proposal to eliminate a tax giveaway to the wealthiest Americans that has infected our system almost since its inception a century ago.  Although that proposal is long overdue, it is also politically doomed, for two reasons.

 

In my Dorf on Law column last Thursday, I quoted Seth Meyers's sarcastic-but-accurate observation that this progressive tax proposal is "the part [of Biden's proposal that] they'll have to cut out before it'll pass."  Back in December, the ever-frustrating Senator Joe Manchin surprised everyone by indicating that he could support this kind of tax increase on the rich, but he continues to play the part of Lucy pulling away the football from the Democrats' Charlie Brown by now opposing the proposal -- but insisting, just to make Orwell's ghost scream, that "everybody has to pay their fair share" by making "other" changes, which he of course will later denounce.

The second reason that this proposal is politically doomed is that Republicans would immediately repeal it upon retaking power in 2025.  It is only a statutory change, after all, and they will even probably use the repeal bill as a Trojan Horse to add ever more egregiously regressive tax measures.  (Florida Senator Rick Scott has not backed off of his plan to increase taxes on tens of millions of poor and middle-class people, for example.)

Moreover, because Republicans are already putting in place all of the elements of a plan to seize control of our political system permanently, there is no chance that the Democrats will ever again hold power, making it impossible to imagine a time when they could repeal the Republicans' repeal.  We are still a dead democracy walking, and every day chips away at the last vestiges of hope for a better future.

Why, then, bother to discuss any proposal to make the tax code fairer?  In other words, why write this column at all?  I admit that I am doing so because the issues are simply interesting to me, but they are also consequential in the real world.  This is what is at stake from the standpoint of the plutocrats who are funding the Republicans' grievance-culture-camouflaged attack on the rule of law.  Money is at stake for those with (almost) all of the money, and they are willing to pull out all of the stops to keep what they believe is rightfully theirs.

Of Judge Jackson, Originalism, and a Tale of Three Scholars

 By Eric Segall

During her confirmation hearing, Judge Kentaji Brown Jackson seemed to self-identify as an originalist. She said the following: “The adherence to text is a constraint on my authority. I’m trying to figure out what those words mean, as they were intended by the people who wrote them.”

These comments, of course, were met with delight across the vast Federalist Society landscape and with despair among non-originalists of all stripes. The two best examples are a pair of essays by, on one hand, Professor John McGinnis, and on the other, Conor Casey and Adrian Vermule. Make no mistake, Casey and Vermule have the better of the argument by far.

Is Permanent Daylight Saving Time Unconstitutional?

by Michael C. Dorf

Barely two weeks ago, the Senate unanimously passed a bill--the Sunshine Protection Act--that would make Daylight Saving Time permanent. Unanimously, that is, among the Senators who knew this was happening. Will the House follow suit? If so, will President Biden sign the bill?

Time will tell, but the editors of the Arizona Law Review are not waiting to find out. They just went live with an online symposium somewhat pretentiously titled "The Unlawfulness of Federal Daylight Savings [sic] Time." Because Arizona is one of only two states (the other being Hawai'i) that don't currently use Daylight Saving Time, the forum is appropriate. Even better, two of the articles are surprisingly interesting. Here I'll say a few words about each.