Originalism, Deference, and Judicial Hypocrisy

By Eric Segall

I am currently working on a long law review article showing that the original meaning of judicial review is nothing like the practice of judicial review today. One can believe in originalism or one can believe in non-deferential, strong judicial review, but one cannot believe in both (at least with intellectual consistency). This blog post is a short summary of that thesis with a lot more to come.

One of My Best Moments with Sherry Colb

by Neil H. Buchanan

Here at Dorf on Law, we are still in shock as we try to cope with the passing of Sherry Colb.  Her husband Michael Dorf posted a beautiful eulogy this past Thursday, and I will soon publish my own thoughts about the death of my wonderful friend and colleague.  Today, however, I am not yet ready to wrestle with those thoughts and emotions, and I know that I would not be able to turn them into cogent (or even minimally coherent) prose.  I will do so soon, I promise, but not yet.

Today, I want to share a column that I wrote in 2008, which was my announcement that I had become a vegan.  I include a link to it every year in my "veganniversary" posts, but I am republishing it today because, as the title of today's column indicates, publishing that column led to one my best moments with Sherry.

 

The moment was great not only because she had been hoping to convince me to become a vegan -- although that was obviously important and essential.  I made the decision shortly after a visit to Ithaca that I describe in the column, but I decided to let Sherry and Mike know not be telling them directly but simply by publishing the piece.  It was thus a surprise to them.  Immediately upon reading it, Sherry contacted me to tell me how happy she was.  Referring to her (then 6- and 4-year-old) daughters, she said that "the girls were screaming with delight when I told them, because they want you to love animals as much as they do."

 

As an aside, I should update my statement in that column that it is "difficult ... to be a vegan."  I am happy to report (as I have noted in many of my columns since 2008) that it is now much, much easier to be a vegan than it was fourteen years ago.  There are remaining challenges, of course, but in the time that Sherry was such a forceful advocate for veganism, the world entered the early stages of a virtuous cycle, with more people becoming vegans, which led to restaurants and food producers bringing out more and better vegan foods, which then led to more people becoming vegans.  Will the cycle continue and even accelerate?  I think so, especially if people remember and are inspired by Sherry's passionate advocacy.

When I am able to write a proper eulogy, I will share more details about Sherry's love of animals, and I will also describe some of the many other ways in which she was extraordinary as a person and as a friend.  For now, I am happy to republish the column that made Sherry so happy, especially because recalling the moment allows me to remember that wonderful laugh of hers.  The memory of her infectious, delighted laugh cannot help but bring a smile to anyone who knew her, and we need to try to smile, even in our sorrow.

Meat, Dairy, Psychology, Law, Economics

Over the weekend, I visited the Farm Sanctuary in Watkins Glen, NY. The Sanctuary is a haven for animals who have been rescued from factory farms and dairies: cows, chickens, turkeys, pigs, sheep, goats, etc. It is also a very low-key public education and advocacy organization. Having been a vegetarian for a number of years, with the intention of at some point becoming a vegan, this visit triggered my decision to eliminate all animal products from my diet and wardrobe. It was a powerful experience.

Losing Scooter

by Sherry F. Colb

[Note from Michael Dorf: A reader suggested that we run a series of Sherry's "greatest hits," which I think is an excellent idea. Over the next several weeks, I'll periodically post Colb classics interspersed with new essays by my co-bloggers. I begin with an essay Sherry posted last December on Medium but not on Dorf on Law. Re-reading it now, it is evident that in talking about our dog Scooter, Sherry was in some way talking about her own illness, but I hesitate to make too much of the point. Sherry never liked when people used the stories of non-human animals simply as a vehicle for talking about humans. In any event, I'll let Sherry's own prose do the work, as it always did.] 

---------

Losing Scooter

When I first met Scooter, he was a small, soft pillow of black, beige, and brown. I picked him up and he licked my nose and eyes. He smelled like corn chips. His mother Hiccup stood outside in the yard, looking in through the sliding doors, back and forth, from him to me.

I never told Scooter this, but he had been my Plan B. I had first attempted to adopt an adorable black puppy from the pound, but a woman named Ray — whom I never met — rejected me. In the adoption paperwork, I had to list everywhere I had lived in the last ten years. I asked Ray’s secretary for more paper because I could not fit all of my homes onto one page. “Ray won’t like that,” sang the secretary as she shook her head. I could not help noticing her name tag, which said “heryl” like an unrepaired sign on the front lawn of a motel.

Ray concluded that a shelter dog was better off euthanized than in my care. So, the next step was the classified listings in the newspaper. One ad described a litter of chocolate and yellow Labrador retriever puppies, and I called and arranged to visit first thing the next morning. I could barely sleep that night before I met Scooter. I loved him at first sight and told the man that I would return in a week to pick up my dog.

Sherry Colb

by Michael C. Dorf

I'm writing with unspeakably sad news. Sherry Colb--my co-blogger, co-author, colleague, best friend, and wife for over 31 years--died this morning. A funeral service will be held this Sunday August 28 at noon at Plaza Jewish Community Chapel on Amsterdam Avenue at 91st Street in Manhattan (five blocks from where Sherry grew up), followed by burial at Cedar Park Chapel and Cemetery in Paramus, NJ. There will be an additional memorial service at Cornell in Ithaca some time in the coming months.

I expect that this news comes as a great shock to most readers, given Sherry's relative youth, and how, until very recently, she was extremely prolific--not just her Verdict columns and blog posts but also four law review articles in the last year. Accordingly, I will add a bit of background.

Vasectomies For All (guest post by Antonio Haynes)

by Antonio Haynes

Since the execrable decision in Dobbs, there seems to be a cottage industry of articles discussing the increase in men having vasectomies. Indeed, a recent New York Times article explained that, “Vasectom[ies], a quick, outpatient surgical procedure that cuts the tubes that carry sperm, [are] one of the most reliable and cost-effective forms of contraception available — with almost none of the side effects or complications of birth control methods that are geared toward women.” Nevertheless, the procedure remains relatively rare. “[I]n the United States, an estimated 500,000 men get the procedure each year. Some surveys suggest roughly 5 to 6 percent of men between 18 and 45 have gotten the procedure, as opposed to roughly 20 percent of women aged 15 to 49 who have gotten their tubes tied.”

According to one urologist, Dobbs itself might change everything: “In April, May and June, 38 young, child-free men got vasectomies at his clinics, making up 4.6 percent of his clients. In the weeks after the ruling, that percentage grew to 9 percent — 63 younger men got the procedure. Most said they had been on the fence for a few years, but the Supreme Court decision was “the final straw.” “Snip, snip, hooray!”

When Winning Elections Is Not Enough, What Then?

by Neil H. Buchanan

Earlier this summer, President Joe Biden and Speaker Nancy Pelosi were raked over the coals by some very understandably frustrated Americans who did not understand top Democrats' tepid reaction to the Supreme Court's ending of abortion rights.  The Court's decision, because it had been leaked months prior, was hardly a surprise.  And even though it still came as a shock, there was no excuse for Democratic leaders not to have responses ready to go, both in terms of political messaging and substantive policy responses.

Instead, the response by the nation's top Democrats was to fall back on tired platitudes once again, telling people that "we just need to win more elections."  That that is tautologically true does not make it helpful, and Pelosi's "now you have to give us even more money to win even more elections" seemed especially tone-deaf (at best), with Democrats having won in 2020.  Yes, if Democrats had been able to pick up some more Senate seats in 2018 and 2020, that might have mattered -- although maybe not, given that there are probably several more Manchin/Sinema types in the wings, willing to say that "the Senate's traditions are important" -- even more important, apparently, than democracy itself.

 

But it would be wrong to say that these Democratic leaders were merely re-litigating the past.  They were, more likely, saying what small-d democrats are supposed to say: If you don't like the results, you try harder next time and convince more people to vote for you.  The problem is that that is no longer a reliable strategy, for two reasons, one familiar and one less so.

 

Nonidentity Redux and a Comment on Animal Equality

 by Michael C. Dorf

Over four years ago, I wrote an essay here previewing remarks that Prof Colb and I were planning to deliver at an animal rights conference at Bucknell University. They concerned our views about how to address an objection to veganism (and vegetarianism and even pescatarianism) that has much in common with what philosophers call the nonidentity problem. The objection says that eating the products of animals benefits those animals because the animals bred and raised for food would not exist but for the demand for their products. As I wrote in 2018, the objection only gets off the ground with respect to farmed animals who have lives worth living, but given the conditions of modern animal agriculture, few animals do lead lives worth living. I then laid out the rest of the response Prof Colb and I were developing on the largely counterfactual assumption that animals bred and raised for food do have lives worth living.

The gears of academia move slowly, so our fully developed view only finally appeared in print this week. You can read "If We Didn't Eat Them, They Wouldn't Exist": The Nonidentity Problem's Implications for Animals (Including Humans) in Volume 2 of the American Journal of Law and Equality. While you're there, you might also want to check out the terrific contributions (including a symposium on equality and criminal law) by Professors David Sklansky, Chris Slobogin, Adriaan Lanni, Christopher Lewis & Adaner Usmani, Brandon Garrett, Josh Bowers, Mike Seidman, Eric Posner & Cass Sunstein, Avi Soifer, Reuven Avi-Yonah, Joe Singer, Martha Minow, Michael Meltsner, Frank Michelman, Joey Fishkin & Willy Forbath, I. Glenn Cohen, and Ben Sachs. Prof Colb and I are humbled and honored to be included among such distinguished company.

We are also extremely grateful to the Journal's editors (Professors Randy Kennedy, Martha Minow, and Cass Sunstein, who also write an Introduction to the Volume) for including our paper in light of the fact that it doesn't really have anything to do with law (except very indirectly) and also doesn't have that much to do with equality. After reproducing our article's abstract as a teaser, I'll say a few words about animal rights and equality.

Dobbs Footnote 48, Precedent, and why the Supreme Court is not a Court

 By Eric Segall

Readers of this blog likely know that I wrote a book in 2012 arguing that the Supreme Court is not a court and its Justices are not judges. My thesis was and is based on a perfect storm of factors, including the institutional design of the Court and our country, historical practices, and human nature. Taking these factors together, I concluded that the Supreme Court in practice makes all- things-considered decisions, not legal decisions, with the only real constraint being the Justices’  own views on what the American people and the elected branches will tolerate or accept. Here is a quick summary of those factors:

1) Most of the Constitution's litigated clauses are hopelessly imprecise;

2) Our Constitution is virtually impossible to amend and extremely old;

3) The people who serve on this institution hold their offices for life;

4) We have a strong tradition of aggressive judicial review dating back to at least 1857 (Dred Scott);

5) The Court's decisions are effectively unreviewable; and

6) The Justices do not now and never have taken positive law sources, including their own prior decisions, even minimally seriously when deciding cases (as opposed to explaining their own decisions, thus leading to a huge transparency gap).

The Winner's Curse in an Autocratic Power Grab (a Dorf on Law Classic)

by Neil H. Buchanan

It is a particularly unusual mid-August for those of us in Dorf on Law World, one consequence of which is that my sincere intention to write a new column today fell by the wayside.  I therefore offer a Dorf on Law Classic from October 15, 2020.  Given the recent Republican primary results, the column seems especially pertinent to our near future.

The Winner's Curse in an Autocratic Power Grab

by Neil H. Buchanan

What would it be like to be on the winning side of a Constitution-shattering political putsch?  Winning is great, right?  Certainly, one would think that -- at least for those who have no principles other than grabbing political power by any means necessary -- life would be pretty good on the other side of a coup d'etat.  You enjoy the spoils, and the other guys eat dirt.

In my new Verdict column today, I start to address that question by looking at the highest-level Republican enablers of Donald Trump.  In fact, I was looking at only a subset of that group, limiting my analysis to those who imagine that they will be president someday.  That means that, for the purposes of that column, I was not looking at Mitch McConnell, Bill Barr, or any of the others who are abetting Trump's push toward a dictatorship.

Pork, Abortion Pills, and Constitutional Methodology

 by Michael C. Dorf

My latest Verdict column previews the pending Supreme Court case of National Pork Producers Council (NPPC) v. Ross. As the column explains, the national pork industry has challenged California's Prop 12, which sets standards for the humane treatment of pigs from which pork products sold in the state derive, even where, as is true of over 99% of the pork sold in California, the pigs are raised and slaughtered in other states. The plaintiffs/petitioners argue that Prop 12 violates the dormant Commerce Clause because it imposes an excessive burden on interstate commerce and/or because it amounts to impermissible extraterritorial legislation. I argue in the column that both challenges should fail.

The column then asks whether, if Prop 12 is valid, so are state laws that ban the importation into the state of abortion pills. After explaining why that result might follow, I offer possible grounds for distinguishing abortion pills, including that FDA approval of such pills may pre-empt state law. If so, then the dormant Commerce Clause is not implicated, because Congress and an agency to which it delegated power will have acted.

As a good legal realist, of course, I don't believe that anything the Court holds in the Prop 12 case will bind the Justices if and when they consider an abortion pill ban. Skilled lawyers can find a way to populate each of the four squares of the 2x2 matrix of possible combinations of results with respect to Prop 12 and abortion pills. A Justice could find both kinds of laws valid, both invalid, Prop 12 valid and abortion pill bans invalid, or vice-versa. Nonetheless, being a constitutional scholar means sometimes taking seriously the possibility that doctrines and principles matter--that sometimes a rule or standard adopted in one case leads one to a result one might oppose on ideological grounds in another case.

My own ideological druthers would have the Court uphold Prop 12 and invalidate abortion pill bans, but suppose one thinks that Prop 12 and a state abortion pill ban must stand or fall together. If the choice were mine, would I prefer that the Court uphold both or invalidate both? I want to use that question to briefly explore a further methodological question.

The Republicans' Move from Being Merely Anti-Tax to Being Openly Anti-Law Is Just About Complete

by Neil H. Buchanan

One of the many false talking points that has recently emerged among Republicans with national ambitions is that the Inflation Reduction Act (the significantly pared-down, but still extremely good, final iteration of the Build Back Better bill) will involve -- cue the scary music -- hiring 87,000 new Internal Revenue Service agents to harass and jail typical, law-abiding American citizens.

Again, this is false.  It is just as false as the claim that the FBI (in carrying out a search of Donald Trump's country club) was using Gestapo tactics to allow Joe Biden's "regime" to exact vengeance on a once and future political rival.  In some ways, however, the "Fear the IRS" story is false and dishonest in more ways than the usual Trump-Republican lies are false and dishonest.  It is also arguably more interesting and consequential, because this latest step in vilifying the IRS highlights the difference between taking a stand on policy (Republicans' advocacy of reduced taxes, or switching to a more regressive tax system) and making a play for anarchy (losing the policy battle but trying to win by making it impossible to enforce duly enacted laws).

My major goal in this column is to explain why a key element of the Republicans' new Fear-the-IRS talking point is grotesquely dishonest.  As I will explain, there is simply no way that a person could innocently make that argument.  It is, to be clear, an ugly story.

What the Current Supreme Court Could (But Won't) Learn From Earl "The Pearl" Monroe

 By Eric Segall

Last week, Mike wrote a sports column on this blog in which he (inexplicably) made public his fandom for both the New York Mets and the New York Yankees. I grew up just a few miles from Mike and I hated the Yankees with a passion and still do, and I'm indifferent to the Mets. 

In the late 1960's and early 70's I bled the orange and blue of the New York Knicks. Although the 1969-70 Championship team is the one people remember because of Willis Reed's epic return to the Court in Game 7 after a serious injury, it is the 1972-73 team that is much more interesting both in terms of sports history and for what the Supreme Court could learn (but likely won't) from both the team and one of its stars, Earl Monroe. Before I explain that seemingly odd connection, for the NBA fans out there, the second championship team had six Hall of Famers, including its entire starting line up. No team since has had six Hall of Famers at the same time.

Earl Monroe, known in college as both "The Pearl" and "Black Jesus," played for a division II team where he averaged 41 points a game in his final year and led the team to the Division II Championship. He was drafted by the Baltimore Bullets (the name of the team now known as the Washington Wizards) and became an immediate star and rookie of the year, averaging 24.3 points a game. He was flashy, exciting, and considered, and this is the important part, the best one-on-one player in the league. Passing and defense were left to others, which was how both his team and the fans wanted it. I strongly suggest you watch this highlight reel from his career, which demonstrates that he was and is one of the most exciting players in NBA history.

While Monroe was making his name in Baltimore, Walt "Clyde Frazier" was doing the same in New York. As the Bill Russell/Wilt Chamberlin rivalry was fading, the Pearl and Clyde started the most important rivalry in the league. They played against each other in numerous playoffs and covered each other on the Court. The Knicks won the Championship in 1969-70, and the Bullets got to the finals but lost to Kareem Abdul Jabbar's Milwaukee Bucks in 1970-71. 

The Search Warrant Freakout is Bad for Everyone, Including Republicans

by Neil H. Buchanan

 

Republican leaders continue to rally around Donald Trump and his absurd claims that the FBI's actions pursuant to a valid search warrant are somehow evidence of a conspiracy against the Florida Man.  His state's junior senator has described law enforcement officers' actions as Gestapo-like, and his state's governor is making noises about "the weaponization of federal agencies against the Regime’s political opponents," adding that the US is now a "banana republic."

In my Dorf on Law column two days ago, I described such reactions by Republicans as the on-the-ground manifestation of the end of constitutional democracy.  The rule of law is all about guaranteeing acceptable outcomes by providing due process and neutral adjudication, but Republicans have now made it abundantly clear that this is all about giving their friends free passes and their opponents the shaft.

In particular, I noted that some of the most widely accepted tropes in politics are at best half-truths.  For instance, despite their decades of tireless anti-tax rhetoric, Republicans are not in fact against taxes.  They are only against taxing rich people.  Notably, Republicans' hyperventilation about the Mar-a-Lago search included claims that the new Inflation Reduction Act's restoration of some funding to the IRS will result in hiring 87,000 agents to harass typical Americans, when in fact the IRS will soon be able to replace retiring employees and reverse some staffing shortfalls that have made it possible for the richest Americans to get away with the tax equivalent of murder.  The problem, again, is not the taxes but who is paying them.

My question in this short column, however, is why the Republicans are bothering with any of this.  What is the point of making a stink about a non-issue and acting as if the country has been taken over by jack-booted thugs?  Yes, the short answer is that they must think that there is some political advantage to be had in doing so, but as so often happens, I think they are missing an opportunity.  They are often good at being bad, but surprisingly often they are bad at being bad.  Why do this?

Mets or Yankees? A Very Self-Indulgent Personal Reflection on the Nature of Loyalty

by Michael C. Dorf

I begin with an apology to my readers who are not sports fans or to those who are sports fans but, like Prof Segall, think baseball unbearably boring. I don't entirely disagree with Prof Segall. My first love (both to play and to watch) was and remains basketball, but today I'm going to write about baseball--and some broader themes with which it connects. I'm the Dorf in Dorf on Law; it says right there at the top that we cover law, politics, economics, and more. Today I want the distraction of baseball. And as I hope becomes clear, I'm using baseball at least partly as an entry point to talk about free will, human relations, and . . . well . . . more.

So . . . the Yankees and Mets are both having outstanding seasons. Although the Yankees started stronger, the smart money is on the Mets to finish with the better record and to fare better in the postseason, now that they have two of the best active pitchers in the majors--Max Scherzer and Jacob deGrom--anchoring their staff. The Dodgers are currently the best team in baseball, but two aces gives the Mets a better chance to get past them than the Yankees' chances of besting their recent nemesis Houston. Indeed, although the Yankees were having a truly historic season until the All Star break, their poor record since then suggests they might lose a first-round playoff series.

Still, the Yankees' best player--outfielder Aaron Judge--is putting up MVP numbers and, absent injury or a prolonged slump, will be the first player to hit 60 or more home runs in a season since Barry Bonds hit an astounding 73 home runs in the 2001 season. Bonds's record is tainted, as are the single-season marks of Mark McGwire and Sammy Sosa. All of them were were juicing. Really, no one other than Yankees Babe Ruth (60 in 1927) and Roger Maris (61 in 1961) has had 60 or more untainted home runs in a season. Purists might say that Ruth still holds the record, as he hit his 60 in a 154-game season. Maris broke the record in the first year of the 162-game season. Still, 60 has been rightly treated as the magic number even in the 162-game era. Meanwhile, the steroids era thus tends to obscure the closest thing we've seen to the feat in recent years--then-Marlin/now-Yankee Giancarlo Stanton's 59 in 2017.

What the End of Democracy Looks Like in Real Life

by Neil H. Buchanan

During the more than seven years that I have been warning about the inevitable end of constitutional democracy in the United States, I have almost exclusively focused on the legal mechanics of how this process will play out.  Being a law professor, I am inexorably drawn to "on paper" explanations, that is, laying out the procedural mechanisms that Republicans are using to turn the US into a one-party state.

Thus, I have pointed out the various ways in which future presidential elections can be hijacked via strategies that tax lawyers would sardonically describe (in a different context) as "perfectly legal" -- that is, gambits that are apparently within the letter of the law but are still terrible outcomes.  The Electoral College exists; the Constitution gives state governments the power to choose electors in utterly non-democratic ways; the Supreme Court has made it clear that Republicans can suppress votes and gerrymander at will; the Court might go even further and endorse the so-called Independent State Legislature theory to cut Democratic governors out of the process; and so on.

Earlier this summer, I pointed out that those mechanisms are ultimately put into operation by people, and we need to understand why so many people have become willing to subvert our republican form of government to maintain power at all costs.  These non-mechanical considerations are important in understanding the on-the-ground reality in which all of this will play out.  After all, even if Republicans could pull off their autocratic coup bloodlessly (based on the "on paper" possibilities that I have described), they are now encouraging a burn-it-all-down attitude.  Will they bother to keep it tidy?  Even if they wanted to, could they at this point stop it from becoming utter bloody chaos?

Justice Clarence Thomas' America: Straight, Color-Blind, Religious, and Heavily Armed

 By Eric Segall

Justice Clarence Thomas has been on the Supreme Court fourteen years longer than any other current Justice. If Thomas serves six more years, which is highly likely, he will be the longest serving Justice in American history. His law clerks have become judges and elected officials all over the United States. Let's take a look at his constitutional vision for the United States of  America.

One caveat. The other conservatives on the Court agree with much of what I discuss below. But none of them (at least so far) agrees with all the cases and legal rules that make up Justice Thomas' jurisprudence and none of them agrees (at least openly) with his radical views on precedent, which I leave for another day.

The DCCC's Dangerous and Dirty Midterms Gamble

by Michael C. Dorf

As most of my readers are probably aware, in the midterm primary elections, the Democratic Congressional Campaign Committee (DCCC) has been funding ads labeling various Trump-aligned Republicans as "too conservative" for the constituents in purple districts in which they're running, knowing and intending that Republican primary voters would be attracted by the ads' highlighting of the candidate's association with Trump. The DCCC calculates that a Democrat has a better chance of defeating a more extreme right-wing candidate than of defeating a more traditional Republican.

The most prominent example of this strategy in the current cycle was support for ultimately successful challenger John Gibbs to displace incumbent Michigan Republican Peter Meijer--who was one of the ten Republican House members with the courage and integrity to vote to impeach Trump after the January 6 insurrection. Meijer and other principled Republicans are understandably outraged. After recording a few caveats, I'll explain why I mostly agree with them.

Please Stop Talking About the Equal Rights Amendment

 by Sherry F. Colb

I have lately heard a tremendous amount of commentary about how, if we were to recognize the Equal Rights Amendment (ERA) as law, women could wrest their right to control their most intimate bodily autonomy from the creeps that currently dominate the Supreme Court. One commentator in particular explained in an LA Times op-ed and then again on the NPR podcast/radio show On The Media that the reason the ERA would be so effective in protecting the right to abortion is that the Court had, up until this most recent benighted Term, identified the right as one of "privacy." Privacy, she explained, does not expressly make an appearance in the Constitution. But the ERA would "explicitly" protect women's entitlement to equality with men. Therefore, she said, President Biden could instruct the Archivist of the United States to carry out his statutory responsibility to certify the ERA's ratification, and that would "cement[]" and "finaliz[e]" the right to abortion in a way that "privacy" could not.

Perhaps I am missing something, so I acknowledge that there might be something to this argument that I do not see. But from where I stand, I think the argument is so completely lacking in substance that I am rather stunned that a major American newspaper and an excellent show like On The Media would have given such nonsense a platform. The one correct statement by the commentator was that lacking an express enumeration of a constitutional right renders the right vulnerable to misogynists who choose to turn to folks like Sir Matthew Hale from the seventeenth century for guidance on women's status in the twenty-first century. If the ERA said explicitly that women (and trans men and nonbinary people) have a right against forced pregnancy and birth, then the ERA would be the perfect response to the 70-page sick bag that Sam Alito (SA) just handed to half the population. But it does not. The ERA says nothing explicit about abortion; it speaks only about equality.

Will Technology Make Workers Obsolete or Merely More Miserable?

by Neil H. Buchanan

There has been a fair amount of chatter over the last several years to the effect that technology will soon make workers obsolete.  This has been a recurring theme in capitalist countries ever since there has been capitalism, with Luddites being the infamous touchstone for anti-automation extremism, but there is always a new audience willing to believe that the latest technological advances will truly, finally, and inevitably bring about the end of labor as we know it.

That point of view received a big boost in the 2019-20 presidential primary season, when tech dilettante Andrew Yang decided that he was qualified to be the leader of the free world.  Almost everyone disagreed, but because of his wealth and the inclusiveness of the early primary season (a process so open that a self-help nutjob was given a respectful audience in Democratic debates), Yang was able to run a one-note campaign based on the idea that human beings will soon be left behind by the relentless forces of capitalism.

I happen to support Yang's major (OK, his only) policy idea, which is a guaranteed "universal basic income" (UBI), even though his path to that idea was completely wrong.  Lately, of course, Yang has regained a bit of the spotlight, this time promoting an earnest and empty idea with two C-list (at best) former politicians (Trump-defying Republicans Christie Whitman and David Jolly), trying gamely to promote a vacuous concept for a new Third Party.  That idea is so vacuous, in fact, that it has aptly been called "political vaporware" and "a party of the total absence of ideas."  Basically, Yang has now joined the bothsidesists with a vengeance.

But good ideas (UBI, not Yang's silly new political party) should not be disparaged merely because unserious people promote them.  Unsurprisingly, serious people are thinking about this as well.  Here, I will explain why it is wrong to think that capitalism will make people obsolete, but I will make clear that that is for even more cynical reasons than the understandably worried people to whom I am responding might imagine.

Will Fixing the Electoral Count Act Avert Disaster?

by Neil H. Buchanan

 

A proposed bill to reform the Electoral Count Act (ECA) is a response to a few of the many problems with the US presidential election system.  Although the ECA has been a disaster in waiting since its passage in 1887, it was only in the 2020 election that it became clear just how vague and ultimately dangerous that law is.  After all, Donald Trump's lawyer John Eastman argued that parts of the ECA are unconstitutional and that the other parts could be used to justify the pre-violence part of the Trumpists' planned coup.

Fortunately, that coup attempt failed -- barely -- and the ECA's many holes did not result in a constitutional crisis and a collapse of the American experiment.  Having only narrowly avoided that fate, people of good will are now trying to clarify and tighten the statutory language to make it even more clear how the certifying, challenging, and counting of electoral votes must proceed.  Eastman was completely wrong, even under the terms of the current ECA, but clarifying the governing law of elections is surely a good idea.

 

The proposed replacement, the Electoral Count Reform Act (ECRA), is being debated and potentially improved as Congress considers how to proceed.  Both Professor Dorf (here) and I (here) have argued that the ECRA has much to commend it, but we have also suggested that it has flaws (and that it might not even pass).  On balance, I ended up arguing (here) that as currently written, it might actually make matters worse.

 

Happily, The Washington Post's op-ed page on Monday featured a new piece by Laurence Tribe, Erwin Chemerinsky, and Dennis Aftergut, "The Electoral Count Act must be fixed. A new proposal doesn’t go far enough." in which they point the way toward making the new law worth passing.

Tribe, Chemerinsky, and Aftergut (TCA) offer a truly excellent, constructive critique of ECRA.  After summarizing their points, I will consider whether or how the ECRA (even if it is still imperfect) could avert disaster.  But it turns out that, as important as it is to replace the ECA, it is surprisingly difficult to sketch out a scenario in which any of it will matter in a future election.  That does not make it a worthless exercise, but it should refocus efforts on where the true vulnerabilities lie in our fragile and threatened constitutional democracy.

Of Dobbs, Constitutional Text, and The Rule of Law or the Rule of People?

 By Eric Segall

In the iconic case Marbury v. Madison, decided not too long after the Founding, Chief Justice John Marshall wrote the following important paragraph, which seems unassailable as a normative matter:

The government of the United States has been emphatically termed a government of laws, and not of men (sic, people). It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right.

Marshall was referring to the decision of President Thomas Jefferson and Secretary of State James Madison to withhold the signed, sealed but not-yet-delivered commission making William Marbury a justice of the peace, but I hope we'd all agree that whatever branch of government is at issue, being a government of laws not people is an excellent aspiration. Of all our institutions, I expect many would think this ideal is especially salient for the United States Supreme Court. Let's see.

Liars in Robes

by Sherry F. Colb

Much to the surprise of many observers, the House of Representatives recently voted to pass H.R. 8404, the Respect for Marriage Act (RFMA). Because of the Orwellian doublespeak to which we have all become accustomed, I hasten to add that this bill would give federal protection (via mandatory interstate recognition) to same-sex marriage (SSM), accomplishing the opposite of the shameful but similarly titled Defense of Marriage Act (DOMA) that Bill Clinton signed in 1996. The passage of RFMA in the House is significant for the safety it would extend to LGBTQ+ Americans in the wake of Sam Alito's (SA's) repugnant, reactionary, and religious opinion in Dobbs v. Jackson Women's Health Org. But RFMA has a subtext that we should not miss in our rush to celebrate the substance of what we hope will become the law.

The House passage of RFMA signifies that a majority of the House concluded that SA and at least three of his partners in crime (Gorsuch, Kavanaugh, and Barrett) are liars.