Friday, July 29, 2022
Thursday, July 28, 2022
Wednesday, July 27, 2022
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In the U.S., laws declared unconstitutional remain on the books unless repealed.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.
Tuesday, July 26, 2022
Monday, July 25, 2022
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.
Friday, July 22, 2022
Thursday, July 21, 2022
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.
Wednesday, July 20, 2022
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).
Tuesday, July 19, 2022
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.
Monday, July 18, 2022
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?
Friday, July 15, 2022
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.
Thursday, July 14, 2022
Wednesday, July 13, 2022
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.
Tuesday, July 12, 2022
Monday, July 11, 2022
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?
Friday, July 08, 2022
Thursday, July 07, 2022
Wednesday, July 06, 2022
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?
Tuesday, July 05, 2022
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.
Monday, July 04, 2022
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.