The Proposed Replacement for the Electoral Count Act is Probably Worse than the Status Quo

by Neil H. Buchanan

 

Last week, Professor Dorf and I wrote somewhat-conflicting assessments of the bill that would amend/replace the 1887 Electoral Count Act (ECA).  We both certainly agree (as does almost everyone) that the ECA is a mess and needs to be replaced.  It is, after all, a big reason that there is so much uncertainty about what happens when competing slates are sent to the Electoral College from the same state; and the miasma that the ECA creates was what Donald Trump's lawyers used to try to pull off the bloodless part of their coup plot.

Even though the ECA is terrible, I should state clearly that there is simply no way that that law -- even in its disastrously muddled current form -- justifies what John Eastman said it justifies.  And any replacement to the bill should be understood not to be immune to such bad-faith misreading.  Even so, there is an important question about the proposed replacement, which boils down to the classic question of whether it is a net plus or a net minus.  Should people who might oppose it suck it up, lest they allow the perfect to be the enemy of the good; or should people who support the bill abandon it, because even a bad law can be made worse?

I come down on the "net worse" side, but I concede that reasonable minds can differ.

Veganism, Year Fourteen: The Duty to Inquire, and the Ethics of Environmental Impact

by Neil H. Buchanan 

 

Yes,  ladies and gentlemen, girls and boys, the time has come for this year's veganniversary column.  Exciting, I know.  As in previous years -- 2021, 2020 (plus followup), 2019 (plus followup), 2018, 2017, 2016, 2015, 2014, 2013, 2012, 2011, 2010, 2009, and the original announcement in 2008 (plus followup) -- this is my annual moment to reflect on life as a vegan, offering observations both pedestrian and philosophical about the practice and impact of refusing to include the products of suffering, torture, and death in one's life.

I do sometimes write columns about veganism not keyed to the veganniversary date (officially July 24, 2008), most recently last month, when I tied the debate about inflation into the argument for being a vegan (including the observation that "meat is not just murder but extremely expensive murder.")  And Professors Colb and Dorf continue to be the true scholarly experts on the topic, especially (but by no means exclusively) their book Beating Hearts: Abortion and Animal Rights (Critical Perspectives on Animals: Theory, Culture, Science, and Law, as well as Professor Colb's sole-authored Mind If I Order the Cheeseburger?: And Other Questions People Ask Vegans. 

 

Today, I want to update the current state of play in the media regarding the connection between animal exploitation and climate change, a problem that is slowly beginning to penetrate the broader discussion -- but not quickly enough, and much too tentatively.  Before getting there, however, I want to take more than a few moments to think about some variations on the ethical case for veganism and people's resistance to it.

 

The Constitutionality of a Federal Law Mandating Marriage Equality

by Michael C. Dorf

Last week, the House of Representatives passed the Respect for Marriage Act (RFMA) which would repeal the operative provisions of the Defense of Marriage Act (DOMA). In 2013, in United States v. Windsor, the Supreme Court invalidated Section 3 of DOMA, which defines marriage solely as consisting of a union of one man and one woman. In the course of finding a constitutional right to same-sex marriage in Obergefell v. Hodges in 2015, SCOTUS invalidated Section 2 of DOMA--which excuses states from giving full faith and credit to same-sex marriages performed in other states. So what's the need for the RFMA?

In the U.S., laws declared unconstitutional remain on the books unless repealed. As women around the country are now learning with respect to abortion, if the precedent that led to a law being found unconstitutional is overruled, the old law can come back to life like a reanimated zombie. Accordingly, passage of the RFMA would be useful insurance in the event that the Court overrules Windsor and/or Obergefell--as Justice Thomas made clear he would like the Court to do in his concurrence in Dobbs v. Jackson Women's Health Org., notwithstanding the statement (which appears twice) in Justice Alito's majority that "[n]othing in this opinion should be understood to cast doubt on precedents that do not concern abortion."

As I and others have noted, Justice Alito's reassurance is not very reassuring. He overturns the right to abortion because it is not deeply rooted in American history and tradition. His basis for distinguishing abortion from the right to same-sex marriage and other facets of what have heretofore been understood as a right to privacy is that the latter do not involve what Roe v. Wade and Planned Parenthood v. Casey termed "potential life." But that's a non sequitur. If the reason there's no right to abortion is that it's not deeply rooted in history and tradition, then if a right to same-sex marriage--described in those specific terms--is also not deeply rooted in history and tradition, then there should be no constitutional right to same-sex marriage either. Had the Court in Dobbs overruled Roe and Casey on the ground that government has a compelling interest in fetal life, the distinction could do the work the majority says it does, but that wasn't the reasoning of Dobbs. Four of the five Justices who signed onto the Dobbs majority apparently don't currently intend to overrule Obergefell or any other non-abortion case based on the authority of Dobbs, but Congress nonetheless could worry that the intentions of this reactionary Supreme Court could change.

Justifying Robin Hood Is Easiest If We Are Honest About It

by Neil H. Buchanan

Does it increase people's overall well-being if a country has the equivalent of Robin Hood -- some entity (government or otherwise) taking from the rich and giving to the poor?  Yes, emphatically yes.  Even so, this question is a timeless one among scholars and policymakers in debates about taxation, expenditures, and related questions of budgetary policy.

Although what I am writing today is not at all tied to a moment in time, I will note that the question of progressive redistribution was again in the news last week -- frustratingly so, because the central player in that news cycle was Senator Joe Manchin, the unrepentantly conservative Democratic senator from West Virginia, whose name will forever be found in sentences that include variations on the words frustrate, exasperate, and infuriate.

 

As part of Manchin's latest bait-and-switch, he ensured that the US will be unable to join in the proposed global minimum corporate tax, and more generally he has made it clearer than ever that he is opposed to voting to make the tax code even slightly less gentle to the wealthiest Americans.  His proffered reasons are, as always, a combination of self-contradictory tripe and embarrassingly silly non sequiturs, but the bottom line is that the last best hope we might have had to see some progressive change in fiscal policy before the Republicans establish permanent one-party autocratic rule is now dashed.

That is not, however, because progressive redistribution is difficult to justify or defend.  Indeed, Robin Hood had a great idea all those centuries ago, and although the great minds of political philosophy have wrestled with the question ever since (even before then, in fact), the case in favor is much easier to make than the case against.  There is nothing like unanimity among moral philosophers or anyone else, but progressivity at least has the great advantage of being intuitively appealing to citizens in democracies and autocracies alike.

The problem, as the title of this column suggests, is that there is a way to make that argument that is -- while not exactly dishonest -- somewhat of a misdirection play.  It falls squarely in the two-clever-by-half hall of fame.

Expected Applications, the Second Amendment, and Why Real Originalism is Either Intolerable or Impossible

 By Eric Segall

Last week at the Law & Liberty blog, Professor John McGinnis, a self-proclaimed originalist, was quite giddy about the Court's Second Amendment opinion in New York Pistol & Rifle Association v. Bruen striking down a New York law requiring a special permit to conceal carry a handgun. His essay, titled "Bruen's Originalism," takes away three main points from the case:

First, it considers carefully how the right to bear arms would have been expected to be applied both before and around the time of its enactment. It thus endorses “expected applications” as a way to give a provision concrete meaning. Second, many, if not most, of these expected applications derive from legal context—both how the Second Amendment reflected previous law and what subsequent law said about how it was to be applied. It thus suggests that this constitutional provision which seems on its face to be written in ordinary language may require a legal gloss to be fully understood. Finally, Bruen stands for the proposition that legal doctrine can be derived from a provision’s original meaning.

Leaving aside the obvious point that the Court's historical analysis was an after-the-fact cobbled-together rationale for a result reached on other grounds, I want to focus this post on McGinnis' first point about "expected applications.” If  McGinnis is descriptively right, his analysis goes a long way to showing why true originalism is either intolerable or impossible.

Democracy's Saviors: Too Late, and (Not Their Fault) Too Little

by Neil H. Buchanan

I am currently in lockdown with my first bout of Covid-19.  It appears that I caught it in Lisbon, where I spent July 12-17 at the (mostly in-person, after two years of Zoom-only) annual meetings of the Law & Society Association.  Portugal has been a Covid trouble spot all summer, the conference was a high-risk event, and I was physically run down after traveling for several weeks.  It all added up to take me down.

I will say this: Science rocks!  My Physician's Assistant told me that, because I am fully vaccinated and boosted, I was in virtually no danger of serious disease or death.  She also put me on the now-standard course of Paxlovid, a Pfizer treatment of five days worth of pills to treat people who have caught the virus.  I am already feeling great.

 

Even so, as I explained in a column this past January, written during an illness that turned out not to be Covid-19, being able to say that an illness is "no big deal" is inherently an ex post concept.  That is, "it'll most likely be mild and short" is not the same thing as being on the other end without having become the exception.  Still, even though I have been suffering through moderate flu-like symptoms (and flu, of course, can also be fatal), the overall experience was amazing, given that this is a deadly, very new disease.  Again: Thanks, science!

To preserve my strength as I convalesce, I will limit my remarks today to three thoughts on why Democracy is still doomed, even though there have recently been reasons to hope that we might be spared the worst.

 

Teaser: My last point is that even a win by Stacy Abrams in this year's Georgia gubernatorial race will be neutralized by Republicans -- not just in terms of Georgia's role as a swing state in 2024 but in every other way.

The Electoral Count Act Reform Bill is Actually Pretty Good. Is it Constitutional?

 by Michael C. Dorf

Much of the news coverage of the proposed legislation to reform the Electoral Count Act (ECA) has focused on its provision (Section 15(b)(1)) stating that in the counting of the Electoral College (EC) votes at the January 6 joint session of Congress, the role of the Vice President (technically the President of the Senate) is entirely ministerial. That's a sensible rule but hardly adequate to address the key threat to democracy. Donald Trump's pressure campaign focused on numerous local, state, and federal officials, turning to VP Pence only after it (just barely) failed against those others.

Moreover, it's not entirely clear that Congress has the constitutional power to decide what the VP's role is in counting EC votes. My view--shared by just about every reputable constitutional scholar--is that Article II and the Twelfth Amendment already make the VP's role ceremonial, but if I'm wrong and the likes of John Eastman are right that the Constitution gives the VP the power to make substantive judgments, then it's not clear how Congress could by statute take that power away. Perhaps the answer is that the issue would not be justiciable, but even that doesn't solve the puzzle, because the courts would then need to decide which political actors to defer to: the Congress that enacted the revised ECA or a Vice President who purported to exercise non-ministerial power to reject/select electoral votes, perhaps with the backing of various members of Congress.

Fortunately, at least in the short run, there is no great risk of abuse. VP Harris will not attempt to exercise substantive power over EC votes on January 6, 2025.

Commander Sam Alito, At Your Cervix

by Sherry F. Colb

It has been a little while since I last analyzed/ranted about some of the countless things wrong with the majority opinion in Dobbs v. Jackson Women's Health Organization. The hiatus has given me a welcome opportunity to discover some more things to hate about that wretched piece of writing. Aiding in the process were conversations with women during which I learned that women who oppose forced pregnancy and birth do not just feel disappointment, dejection, and the sense that their lives (our lives) count less than the "life" of a fertilized egg the size of the period at the end of this sentence. They feel hatred for Sam Alito (SA).

Justice Clarence Thomas, Race, and Judicial Hypocrisy

By Eric Segall

Justice Clarence Thomas is six years away from being the longest service Justice in American history. Much has been written about his influence and his law clerks, many of whom have gone on to become judges or hold other positions of power. Even more has been written about his views on race. Many, but not all, on the left believe Thomas has done enormous damage by his stubborn and persistent embracing of the so-called color-blind Constitution. Many on the right believe that he is a hero for that dogmatic position. Still others are conflicted because they see in Thomas a fiercely proud man who believes strongly that people of color will never benefit from white largesse and that the best way to dismantle racism in this country is to allow African Americans and other people of color to succeed on exactly the same terms as white folks because any other position is demeaning to all of our citizens including traditionally disadvantaged minorities. 

I side with those who see great harm in Thomas' opposition to any government aid directed specifically to people of color. But this blog post is about something else. It is about the mythology and hypocrisy of so-called textualist and originalist judges, especially when it comes to race. And the greatest offender of all is Justice Clarence Thomas.

What Motivates Billionaires? Twitter v. Musk Edition

 by Michael C. Dorf

My latest Verdict column discusses Twitter's lawsuit against Elon Musk. Twitter seeks to compel Musk to consummate the deal he signed in April to buy the company. If you don't want to read the column . . . well shame on you . . . but okay, here's a very rough summary:

(1) Twitter wasn't worth the $44 billion Musk agreed to pay for it in April and it's worth even less now; (2) under the terms of the deal, that doesn't excuse Musk's performance; (3) neither do his contentions about bot accounts or Twitter's cooperation since April; (4) so, at least if the complaint is basically accurate in the facts it recounts, Musk is in breach; (5) Musk's motion to delay trial until next year should probably be denied, because the matters that Musk says will take more time to complete appear to be legally irrelevant; (6) the remedy for breach is usually damages but here there's a specific performance clause; (7) the Delaware Chancery Court typically enforces such clauses; (8) but maybe the court shouldn't enforce this one because the "balance of the equities" factor cuts against giving control of one of the leading social media platforms to an impetuous egomaniacal man-child whose behavior resembles that of Donald Trump and who would run Twitter without any content moderation, so as to allow the likes of Trump to make Twitter (even more) toxic; (9) nonetheless, given what I've been able to learn about remedies in the Delaware Chancery Court, there's a good chance that specific performance will be ordered; and (10) at that point the best hope is that Musk and Twitter settle for some number of billions of dollars in lieu of Musk's purchase and then destruction of Twitter.

The full column contains more, but those are the basics. Here, however, I want to dwell on a point I accept from the complaint for purposes of the column but which strikes me as at least somewhat doubtful: Twitter says that Musk is having buyer's remorse because of the decline in the market, making what was a questionable deal in April look terrible now. I don't disagree that Musk appears to have buyer's remorse, but I'm not sure how much of that is due to the economics of the deal. It could be entirely about the economics, especially given the indirect impact on Tesla, the source of most of Musk's wealth. And so far as the contract is concerned, it doesn't really matter why Musk wants to get out of the deal. The key legal point is that he hasn't identified a breach by Twitter or other relevant circumstance that would excuse his performance.

Even though Musk's motive is irrelevant legally, we might be interested in it as a matter of psychology: if Musk was willing to make himself poorer to acquire Twitter in April, why doesn't he want to make himself even poorer--but still fabulously wealthy--now? I don't know the answer to that question, nor to the question of whether financial considerations really are driving Musk now. So I'll instead ask a more basic one: what motivates billionaires?

The Uneasy and Futile Case for Filibuster Reform

 by Michael C. Dorf

In a Bloomberg Law podcast that first aired earlier this week, I talked with host June Grasso about the most recently concluded SCOTUS term, next term, and some larger questions. At the rough midpoint of the segment, as we pivoted from last term to next term, she asked me whether, in light of my bleak assessment of the Court's recent decisions and the trend line, I support increasing the size of the Court. I gave a somewhat qualified answer: doing so wouldn't decrease polarization (the subject we had been discussing immediately before the question) but it was worth a try in light of the threats to our democracy. I explained, however, that I think Court expansion is a non-starter given that it cannot be done through reconciliation and thus requires either 60 votes in the Senate or a change in the cloture/filibuster rule, neither of which is remotely likely.

Meanwhile, in a guest post here on the blog on Wednesday, Professor Ron Krotoszynski proposed that Congress should use the reconciliation procedure (which requires only a bare majority in the Senate) to enact a law conditioning federal Medicaid, Medicare, and other related funds on states providing access to therapeutic abortions. Prof Krotoszynski acknowledged that it would be better to guarantee general access to abortion but noted that the 60 votes or filibuster reform needed to do so are not forthcoming. Using the UK as a model, he also explained that with a sufficiently capacious definition of medical need (one that includes mental health broadly defined), protection for therapeutic abortion could be nearly as encompassing as express protection for elective abortion.

Here I want to ask whether we are giving up too quickly on more sweeping legislation accomplished via filibuster reform. I'll focus mostly on my own position, which to a casual podcast listener could come across as defeatist, whereas Prof Krotoszynski at least offered a concrete action proposal.

Things Are Getting Scary Out There (but You Knew That)

by Neil H. Buchanan 

 

Part of the surge in traveling this summer has involved professors attending academic conferences in person for the first time in almost three years.  (But no, there are not enough of us to be anything but a tiny contributor to the larger problem.)  I am currently in Lisbon for the Law & Society Association meetings, after having been in Amsterdam, London, and Cambridge over the past two weeks, and I might be the only person I know who has not yet had a flight canceled or ridiculously delayed.

 

Obviously, I have now jinxed myself.  Will I ever return to the United States?  Would I care?  As I noted in a pair of Verdict columns earlier this year (January 12 and January 20), a reasonable person might well wish to leave the Greatest Country in the History of the World™in fear of the growing evidence of an autocratic (and violent) future there.  The question remains, however, where would one go to escape the craziness.

How to Protect Access to Reproductive Health Care with Only 50 Votes in the Senate

 by Ronald Krotoszynski

As the initial shock of the Supreme Court’s Dobbs decision, which overturns Roe and denies women across the U.S. control over their own bodies, begins to fade, a pressing question demands to be asked and answered: What, if anything, can the political branches of the federal government now do to make reproductive health care available to all American women?

Everyone seems to assume that any legislation restoring meaningful access to reproductive health care-- “codifying Roe” -- would require 60 votes in the Senate.  GOP Leader Mitch McConnell has mused that “In the Senate, most things require 60 votes. Neither side of this issue has come anywhere close to having 60 votes.”  

President Biden and the Democratic leadership of Congress disagree with McConnell about many things -- but not on this question.  Their answer?  An executive order directing federal agencies to identify “potential” ways to ensure access to medication abortion and emergency contraception – as well as anodyne pleas for Democratic voters to turn out in November.  However, no serious person believes that the Democratic caucus will number 60 members on January 4, 2023 -- and it’s equally open to doubt whether the Democratic caucus will increase sufficiently to make meaningful filibuster reform a realistic path forward.  It also seems likely, if current polling remains unchanged by November, that the Democrats will lose control of the U.S. House to the GOP -- at which point having 60 votes in the Senate would not matter.

Audits, Rectal Exams, and Political Payback

by Neil H. Buchanan

I begin today's column by noting that I have a bad track record when it comes to predicting that certain political developments will not have staying power.  Not just a bad track record, but a laughably terrible one.

Two of the most painfully obvious examples of my anti-predictive powers have, in fact, in the end helped my academic career.  When I first wrote about what I soon dubbed "the IRS non-scandal" in 2013, I imagined that that complete nothingburger would at most add up to a one-week brouhaha.  I will return to that story below, because it is suddenly relevant again in an even weirder way.  But as an initial matter, I readily concede that the Republicans' insistence on running with that utterly contrived grievance spawned many a column in my formative years writing on Dorf on Law and Verdict.

Even more egregiously, we need only look at my initial reaction to news that Republicans in late 2010 (after retaking the House of Representatives in President Obama's first midterm election) were planning to use the debt ceiling statute to hold the economy hostage, forcing Obama to accede to their increasingly unhinged demands.

 

I have recounted several times over the years that a reader contacted me just as that idea began to make the rounds among his conservative friends (and thus before I had heard about it).  When he suggested that I might want to have a go at writing a column about it, my response was, almost verbatim: "I can't imagine being able to fill an entire column discussing something so silly, but sure, I'll try."

Literally hundreds of columns -- plus five law review articles (co-authored with Professor Dorf) and a book compilation of my first two years of columns about the insanity -- later, there is still more to be written.  (Yes, there is another Buchanan/Dorf law review article in the works that extends our analysis in yet another direction.)  Once again, my bad prediction ended up being good for my academic career, as I added many lines to my curriculum vitae.  And that is what truly matters, right?

This time, I wonder if I will be wrong again.  About what?   It turns out that the IRS under Donald Trump audited both James Comey and Andrew McCabe -- the former Director and Deputy Director of the FBI, respectively -- after each of them was fired by Trump for failing to toe the Trumpian line.  That sounds bad, and it is.  Why do I nonetheless imagine that this is destined to die a quiet death?  And might I be wrong?

1791 or 1868? The Question Itself Reveals a Contradiction Between Originalism and Jot-for-Jot Incorporation

 by Michael C. Dorf

Last month, I wrote a Verdict column criticizing the history-only methodology of Justice Thomas's majority opinion in New York State Rifle & Pistol Assn., Inc. v. Bruen. Whether that methodology--which purports to eschew any sort of means/ends test--spreads to other areas of law remains to be seen. Today I want to explore a problem that both the majority opinion and Justice Barrett's Bruen concurrence acknowledged but did not address: how to choose between the 1791 and the 1868 understanding of a provision of the Bill of Rights, if they differ?

Let's start with some background. The Court's cases say that the Fourteenth Amendment incorporates most of the provisions of the Bill of Rights against the states. Ramos v. Louisiana (2020) definitively resolved what had been a (just barely) open question: whether, when the Fourteenth Amendment does incorporate a rights provision, it has the exact same content against the states as it does against the federal government--a position that was once called "jot-for-jot" incorporation? The Court in Ramos says yes, it does, rejecting the possibility that a "watered-down" version of a rights provision could apply to the states.

Is Ramos reconcilable with originalism? Suppose that in 1791, the First Amendment's protection for "freedom of speech [and] of the press" was not understood to forbid injunctions against defamatory statements but that by 1868 those terms were so understood. (This reading of the history is at least plausible.) The most straightforward application of originalism would then say that the Fourteenth Amendment provides greater protection for free speech when infringed by state or local government than the First Amendment provides for it when infringed by the federal government. The Bill of Rights, in this instance, would provide a "watered-down" version of what the Fourteenth Amendment provides. Conversely, where understandings of rights narrowed between 1791 and 1868, the opposite would be true.

The majority and concurrence in Bruen say they don't need to resolve the issue because the challenged New York law violates the Second Amendment as understood in 1791 and the Fourteenth Amendment's incorporation of the Second Amendment as understood in 1868. But presumably honest historians will find divergences in some future cases. How should such divergences be handled?

Theocratic Cherry-Picking

by Neil H. Buchanan 

 

Yesterday, I discussed the Dobbs opinion (overturning Roe) not by going back over the now-familiar ways in which it is an embarrassing piece of legal hackwork but by asking how anyone could sign their names to it -- in particular, the supposed elite conservative legal minds that the Federalist Society has been honing and hyping for years.

The short version of that column was: "This was the biggest game of their lives, but they didn't bother to bring their A Game, because they simply don't respect the rest of the world enough even to pretend that they need to justify their power grab."  I also suggested another possibility, beyond the Dobbs 5 not bringing their A Game: They might not have one.  That is what I argued about Antonin Scalia, and there certainly is nothing that we have seen from any of the current crowd that suggests that they are the pick of any litter.

Today, I want to discuss how this motley crew might respond to upcoming legal challenges to the various ways in which the federal government subsidizes and supports abortion services.  To be clear, I am not talking about what the Biden Administration might yet decide to do, including opening abortion clinics on military bases or other innovative responses to Dobbs.  I am talking about how current federal law supports abortion in ways that are surely enraging to these theocrats and will surely lead to legal challenges.

This analysis will then lead to an interesting conclusion: recognizing the existence of what are in fact subsidies for abortions ought to require recognizing the existence of subsidies for other things, most particularly federal support for organized religion.  It is a nasty little conundrum.  My prediction, however, is that the Court will simply not care and will instead do what it wants, consistency be damned.

Why Did Five Supposedly Smart People Decide to Be Remembered for Dobbs Hackery?

by Neil H. Buchanan 

 

The pure hubris of the majority opinion in Dobbs continues to amaze.  In addition to everything that Professor Colb has written on the topic (a particularly strong example being "Sam Alito and His Big Dicta"), Professor Dorf's two columns yesterday (on Verdict and here on Dorf on Law) offered an extended critique of one relatively small aspect of the 5-justice majority's mess, showing that the opinion dishonestly relied on pro-choice scholars' work to justify its assault on women's bodily integrity.  The worst judicial hackwork can have the (very inadequate) side benefit of generating brilliant scholarly criticism.

Tomorrow, I will discuss an implication of the Court's no-longer-even-plausibly-deniable embrace of theocracy (more accurately: Christian nationalism) in the context of "state support" of abortion through various employment and tax laws.  Here, however, it is worth stopping for a moment to marvel at the pure arrogance of the five signers of the Alito opinion.

 

After all, Dobbs is a breathtaking assault on millions of people's lives.  Why did the majority not make a better show of it?  That is, the five jurists from Gilead could not even be bothered to try to concoct a good cover story.  Why risk pulling a muscle pretending that we're not hacks? they seem to have thought, while fighting back a bored yawn.  It is a good question.

Egregiously Egregious? A Dobbs-Inspired Follow-Up Regarding "Precedent on Precedent"

 by Michael C. Dorf

My latest Verdict column criticizes the way in which Justice Alito's majority opinion in Dobbs uses selective quotations from pro-choice/liberal scholars and others to argue that Roe was wrongly decided. I pay special attention to the opinion's reliance on Justice Ginsburg's 1993 Madison Lecture and John Hart Ely's post-Roe article The Wages of Crying Wolf. I explain that while Justice Ginsburg did think Roe went too far too fast and would have been better grounded in equal protection, she thought it was rightly decided and should not be overruled. Ely, for his part, did think Roe was wrong as an original matter but reasonably well-informed observers--presumably including the majority Justices in Dobbs and the law clerks who worked on the case for them--would know that Ely also thought and said that the Casey Court was correct to reaffirm Roe. Moreover, I explain that we must place Ely's views about Roe must in the context of his broader argument that the central function of judicial review is to strengthen democracy--a function that the Roberts Court conservative super-majority is not only failing to carry out but is actively undermining.

One can criticize the Dobbs opinion in numerous other ways, of course, and my co-bloggers--especially Prof. Colb--have offered a large number of such critiques. In today's essay, I want to pivot from critique to analysis, to ask a question posed by the Dobbs majority's views with respect to stare decisis. I expect that my co-bloggers and I will return to critique sooner or later, but for now I'm going to focus on the stare decisis issue as an abstract matter. In particular, I want to address the following issue:

Suppose a court in Case P2 is asked to overrule Precedent P1. The court weighs all of the relevant factors and concludes that P1 was a close case but it was either rightly decided or, if wrong, not so wrong as to justify overruling, in light of the other stare decisis factors of workability, effect on other areas of law, and reliance. Accordingly P2 reaffirms P1. Some time passes and now the court is asked in P3 to overrule P1 and P2. Should the fact that P2 reaffirmed P1 provide any insulation against overruling? Or does the P3 court face exactly the same question was presented in P2?

Complicity in the Violation of Moral Imperatives

by Sherry F. Colb

I think we need to have a conversation about complicity. I do not refer here to criminal accountability for another person's crimes. I refer instead to the wish to avoid moral complicity that excuses people from having to abide by a law or rule or expectation that applies to them. Take the example of people who work at fake abortion clinics, sometimes called "crisis pregnancy centers," where they lie to patients about how far along they are and about the (nonexistent) link between abortion and breast cancer. Though lying is (apparently) religiously permissible, these places of righteousness and zygote rescue have consistently resisted attempts to make them tell patients where they can go to end an unwanted pregnancy, and the reason has to do with complicity. Letting a woman know where she could go for a real abortion would make the believers in forced pregnancy and childbirth feel like accomplices in that abortion.

Are Women Livestock?

 by Sherry F. Colb

Regular readers of this blog know that I recently received a flood of nasty messages (most of which I did not read) in response to a rather modest critique of Samuel Alito (SA)'s Dobbs opinion that I published recently on the Fox News web site. I selected one theme from the messages that I did read to explore the significance, if any, of the fact that the government that will force women to carry pregnancies to term against their will did not itself impregnate those women. Spoiler alert: that fact changes nothing about the proper analysis. We all act in ways that carry risks of disease and death and yet rightfully expect to be allowed to treat the conditions that plague us as a result. An unwanted pregnancy is no different along the "consent" dimension, even though one must separately offer an account of why a zygote or embryo or fetus cannot override the interests of the woman whose body it has colonized. I have offered such accounts in a variety of venues, so I will leave that issue unaddressed here. What I want to discuss in this post is a meme that I have encountered on FaceBook (I know, I know) a number of times and that comes from the pro-choice side of the debate. The meme says something along the lines of "women are not livestock!" The assertion here is important for what it implies about what it is that too many women seem to be seeking and for what it suggests about the proper moral order of things.

What Is the Opposite of a Victory Lap? What It Feels Like to Have Seen the Existential Danger of Trumpism from the Beginning

by Neil H. Buchanan

Last month, a devastating series of Supreme Court decisions competed for our attention with the hearings being held by the January 6th Select Committee.  Which was worse?  I have written very little about the Court's doings, mostly because my co-columnists here on Dorf on Law have used their considerable expertise to demolish those rulings.  I might soon have something to say about the evisceration of the administrative state, but here I want to discuss the hearings that have laid out the shocking details of Donald Trump's insurrection.

More precisely, as the committee's evidence of Trump's lawlessness continues to roll out, I want to discuss what it feels like to have accurately predicted disaster and to have been dismissed as an alarmist every step along the way.  Am I supposed to feel like I won?  Hardly.  Should I maybe run backward around a stadium, acknowledging that the world is as bad as I thought it was but that this is ... how do I say it ... still bad?  And what does one do now?  Can I make money from setting up a Consultancy of Doom, perhaps?