Top Ten Observations About the Affirmative Action Oral Arguments

 By Eric Segall

Here are my top ten observations (in no particular order) about the affirmative action oral arguments from Monday.

1) No one seemed to care that the University of North Carolina is only 8% Black in a state where Blacks make up 21% of the population. These facts seem important to me.

2) Justice Gorsuch really, really hates the sport of squash. If you didn't listen, don't ask.

3) No one seems to care that the Massachusetts legislature is only 2% Black while the state is 9% Black. These facts seem important to me.

4) The conservative Justices asked almost no questions about the original meaning of either the 14th Amendment or Title VI. I think we all know why.

5) The conservative Justices seemed obsessed about the statement by Justice O'Connor in Grutter v. Bollinger that she expected affirmative action to not be needed in 25 years. At my law school a few years ago, she said unequivocally she meant that sentence as aspirational and that too much has been made of it. All smart people knew this already.

6) Justice Jackson may already be the best questioner on the Court.

7) The liberal justices made convincing arguments that there are no reasonable race-neutral alternatives to taking race into account in university admissions. All smart people knew this already.

8) There was almost no discussion of stare decisis despite the fact that one of the questions presented was whether Grutter should be overruled. I think we all know what that means.

9) For some reason, Justice Kavanaugh asked why Harvard does not have a box where people can show their religion. I guess the reason might be that this Court feels religious discrimination is more of a problem than racial discrimination in today's America. That belief is insanely wrong, 

10) None of the Justices did a good job of establishing that institutional racism is still a major problem in America and that is one reason affirmative action is still badly needed. I detailed this racism here.

Bonus Point: Despite five hours of give and take, we all know the Court is going to end affirmative action. When they do so, the opinion will be mostly policy despite the Court telling us last term in the abortion and gun cases that policy concerns should be irrelevant to constitutional interpretation. In other words, text and history for me but not for thee.

Title VI Versus Equal Protection in Today's Affirmative Action Cases

by Michael C. Dorf

The two challenges to race-based affirmative action that the Supreme Court will hear today mostly overlap, but two factors distinguish them from one another. First, a full complement of nine Justices will participate in the University of North Carolina case, while only eight Justices will participate in the Harvard case (because Justice Jackson has recused herself). Second, UNC is bound by both the Fourteenth Amendment's Equal Protection Clause and Title VI of the 1964 Civil Rights Act, whereas Harvard is bound only by Title VI. Here I want to focus on that second factor. Much of the attention to the cases (including by me in my post on Friday) has focused on the constitutional issue, presented in only the UNC case. But the Court could avoid saying anything about the Constitution by ruling that the statute forbids race-based affirmative action.

Here's the key language of Title VI: "No person in the United States shall, on the ground of race, color, or national origin, be . . . subjected to discrimination under any program or activity receiving Federal financial assistance." In the Bakke case, Justice Powell's controlling opinion concluded that Title VI is coextensive with equal protection. On this point, Powell spoke for the Court, as he was joined by the four Justices (Brennan, White, Marshall, and Blackmun) who would have upheld UC Davis Medical School's admissions program against Bakke's challenge.

Accordingly, as a matter of precedent, there is no separate issue under Title VI. Harvard and other private colleges and universities face the same federal legal limits on the use of race in admissions as UNC and other public colleges and universities do. So why am I drawing a distinction?

For the fairly obvious reason that in each case, the first certiorari question is whether the Court should overrule Grutter v. Bollinger, the 2003 case in which the Court sustained the University of Michigan Law School's affirmative action program on the strength of and applying the rationale of the Powell opinion in Bakke. If the Court is willing to overrule Grutter--and let's face it, the Court's composition and the fact that it granted cert in the two cases strongly suggest it is--then it may also be willing to overrule the equation of Title VI with equal protection.

Federal Exceptionalism and the Fourteenth Amendment's Framers' Intent

 by Michael C. Dorf

My latest Verdict column criticizes the recent turn to history by the SCOTUS conservative super-majority on a number of grounds, some of which will be familiar to readers who follow debates over originalism and constitutional interpretation but one of which I believe is at least somewhat novel. I explain that there is the potential for the Court either to destabilize nearly all of constitutional law or else merely shift the terms but not the substance of the debate. Here's the core of the argument:

[T]he shift to a history-alone approach creates a boundary problem. If old precedents using other methods are presumptively preserved via stare decisis but new cases will be decided using the history-only method, one must have some further method for distinguishing old from new. That itself is a tall order, because lawyers typically do not ask for a brand new rule of law. Instead, they contend that the court should simply apply an existing rule or standard in a slightly new context.

There's more to that argument, of course, so I suggest that readers who are intrigued (or even mildly interested!) check out the full column. While doing so, they will note that in the course of recounting more familiar critiques of originalism, I point to self-described originalists' failure to apply their methodology consistently when doing so could lead to results they strongly oppose on ideological grounds. My chief example concerns evidence that the framers of the Fourteenth Amendment did not regard what we would now call affirmative action as inconsistent of their egalitarian principles. I made a more expansive version of the point on the blog in the context of unpacking (and worrying over) Justice Jackson's seeming endorsement of originalism in the recent oral argument in the Voting Rights Act case from Alabama. In the balance of today's post, I want to respond to a counter-argument I have sometimes encountered (including in correspondence from a reader of that earlier blog post).

The evidence cited in my earlier post shows that the same Congress that proposed the Fourteenth Amendment also adopted laws that conferred benefits specifically on African Americans so designated by race. The counter-argument to which I want to respond now begins with the fact that the Fourteenth Amendment's Equal Protection Clause applies to states and their subdivisions (i.e., local governments) but not to the federal government. Thus, the counter-argument continues, the adoption of race-specific measures by the Reconstruction Congress does not tell us much if anything about what the members of that Congress thought equal protection meant, because nothing they enacted at the federal level could run afoul of the Fourteenth Amendment.

Now onto my response.

Conservatives' Economic Talking Points Are Invariably False All-or-Nothing Choices

by Neil H. Buchanan

We have all become accustomed to Republicans’ increasing willingness simply to lie about the world.  Claiming that Critical Race Theory is taught in the schools (which they supplement with the absurd sub-lie that kids are being indoctrinated to "hate" themselves for being White) and that abortions are performed as late as the moment of birth are only two of the most commonly repeated lies.  And of course, literally hundreds of Republican candidates for office this year refuse to admit that the 2020 election was free and fair and that their side lost.

Even so, it is worth remembering that some of the more common deceptions in the Republican playbook are not direct factual misstatements but instead rely on a completely nuance-free insinuation that everything is an all-or-nothing choice.  Either you are in favor of the Iraq War or you "hate America."  Either you want to throw every brown-skinned person out of the country or you favor "open borders."  Either you want to turn every police department into a mini-Navy SEALS team, or you "don't back the blue."  Either you want the government to execute people in your name or you "want to let murderers loose."

Those examples are all transparently false, but others are less so.  Here, I will look at three of American conservatives' favorite talking points about economic issues -- Fed-bashing, the Laffer Curve, and the Confidence Fairy -- and show that each of these endlessly repeated articles of faith boils down to a false all-or-nothing choice.  Once viewed in this way, it is in some ways tempting to see the Republican worldview as an impressive edifice.  Completely dishonest, sure.  But impressive.

Am I Going Too Easy on the Fed?

by Neil H. Buchanan

Two weeks ago, when former Federal Reserve chair Ben Bernanke won this year's faux-Nobel in economics, I wrote: "How Did We Luck Out at the Fed?"  Bernanke had always been a reliably orthodox conservative economist, with all of the standard credentials that would make him an obvious choice by a Republican president to run the nation's central bank.  When George W. Bush tapped Bernanke in 2006, the choice was not depressing but certainly counted as uninspired.  My column, however, argued that Bernanke had ended up being a brilliant Fed chair.

History sometimes confronts people with opportunities for greatness or catastrophic failure, and the global financial crisis of 2008-09 allowed Bernanke to prove that he was neither a hack nor an ideologue.  That was our good luck, because there are plenty of people who have served in that position (and others who were surely on Bush's short list when Bernanke was chosen) who would have made horribly wrong decisions.  It took a truly bold mind to violate hard-money orthodoxy by pouring money into the economy when it absolutely needed it -- even as the usual suspects were screaming about currency debasement and all the rest -- and to keep interest rates at or near zero for years on end.  To the extent that we have had any economic success in the last sixteen years -- and we have, although it has been far too unequal in its effects on real people -- it all began with Bernanke.

I wrote my column two weeks ago to note that the Fed has been a haven of sanity in an increasingly degraded policy and political environment in the US.  In 2014, after Bernanke had served two full four-year terms, Barack Obama replaced him with Janet Yellen (now Joe Biden's Treasury Secretary), and Donald Trump then replaced her (because everything Obama-related had to go) with Jerome Powell, who still serves as Fed chair today.

But has the Fed truly been as good as I claimed in my recent column?  And even if the answer to that question is yes, is the Fed making a mistake now?  If so, the Fed might be needlessly dooming millions of Americans (and people in other countries, for that matter) to lose their jobs, their houses, and possibly their families.  Sadly, I think the answer is yes.  The Fed might feel that it has no choice but to slam on the brakes to try to reduce inflation, in the tough-love kind of approach that monetary policy types always applaud, but it might end up simply inflicting pain gratuitously.

That does not necessarily mean that Powell and the other Fed policymakers know that they are causing pain with no gain, which means that when I say that they might be "simply inflicting pain gratuitously," I am not saying that they are being deliberately callous.  They might simply be wrong.  But they do know that they are causing pain.  The only question is whether they are right that it will have been worth it.

Again, I am not so sure.

Abortion, Guns, Affirmative Action and Fake Textualism and Federalism

By Eric Segall

Last June in the Dobbs decision, the Supreme Court gave the American people a firm lecture on the importance of textualism and states' rights. The majority opinion written by Justice Alito repeatedly argued that, because the right to terminate a pregnancy is not in the Constitution's text and was not protected as an original matter in 1789 or 1868, the difficult issue of abortion should be left to the states. Justice Alito wrote the following:

Abortion presents a profound moral issue on which Americans hold sharply conflicting views.... For the first 185 years after the adoption of the Constitution, each State was permitted to address this issue in accordance with the views of its citizens. Then, in 1973, this Court decided Roe v. Wade.... Even though the Constitution makes no mention of abortion, the Court held that it confers a broad right to obtain one. It did not claim that American law or the common law had ever recognized such a right.

The plaintiffs and amici in Dobbs argued that the right to terminate a pregnancy is closely related to other unenumerated rights the Court had recognized in the past, such as the right of adults to refuse unwanted medical treatment, the right to use contraception, and the right to same-sex marriage. In response to those arguments, the Dobbs majority said that those and other non-textual rights were different because abortion destroys "fetal life" or an "unborn human being." The majority concluded the following:

It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives. The permissibility of abortion, and the limitations, upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting. That is what the Constitution and the rule of law demand.  

Before turning to guns and affirmative action, it is important to recognize that as a matter of internal critique, Dobbs fails badly. Others have criticized Alito's misuse of history but I want to focus on his textual conclusions. He did not deny the existence of non-textual fundamental rights such as the right to contraception and the right to control one's own body. The difference he said, as noted above, is that those rights don't involve the destruction of a fetus or an "unborn human being." 

Standing, Merits, and Politics in the Legal Challenges to Student Loan Forgiveness

by Michael C. Dorf

On Thursday, Justice Barrett swiftly and rightly rejected the emergency petition by Wisconsin taxpayers challenging President Biden's student loan forgiveness plan. The petition was procedurally absurd. It claimed that the taxpayers had standing because by forgiving debts owed to the federal government, Biden would increase the federal deficit, which in turn would require more revenue to close the gap, which in turn would increase their tax liability.

The main difficulty with this theory is that the Supreme Court long ago rejected the idea that taxpayers have standing qua taxpayers. (That's different from challenging a tax one claims is itself illegal, although even then, a federal statute requires one to pay the tax and then sue for a refund in the tax court.) There's an exception to the no-taxpayer-standing rule that allows for taxpayer standing to challenge direct expenditures alleged to violate the First Amendment's Establishment Clause, but in recent years the Court has narrowed that exception nearly to the vanishing point, and, in any event, the Wisconsin challengers did not allege anything resembling an Establishment Clause violation. Instead, their petition said that "no Supreme Court decision has slammed the door on application of [the exception to the no-taxpayer-standing rule] outside of the Establishment Clause context."

That's wrong, but even if it were right, it would hardly have entitled the Wisconsin taxpayers to an emergency order, which requires, among other things, a showing of a likelihood of success upon full consideration; the fact (if it is a fact, which it isn't) that current precedent does not completely foreclose a claim hardly means that the claim will likely succeed.

Accordingly, Justice Barrett was right to reject the petition without first referring it to the full Court. Under Supreme Court Rule 23.4, the petitioners still have the option of going to a second Justice of their choosing. (They went to Barrett first because she's the 7th Circuit Justice, but they can go to any Justice second.) But if that second Justice follows the law, he (let's be realistic, they're not going to Sotomayor, Kagan, or Jackson) should also swiftly deny the petition.

So the case as presented to SCOTUS was a loser. But the Wisconsin case is not the only challenge to the loan forgiveness plan. Barely was the (electronic) ink dry on Justice Barrett's rejection of the Wisconsin case when, on Friday, the Eighth Circuit issued what it misleadingly called an "administrative stay" but was actually a temporary injunction against implementation of the debt forgiveness program pending briefs due later today and tomorrow. That order came in a case brought by Nebraska, Missouri, Arkansas, Iowa, Kansas and South Carolina. The district judge dismissed it for lack of standing, but presumably the appeals court thinks the states could have standing and a good chance of winning on the merits. After a few more preliminaries, I'll say something about those underlying merits and about the political/ideological stakes.

The Predecessors and Aftermaths of Dobbs: From Movements to Courts to Movements

by Sidney G. Tarrow

When, on June 24th, the Supreme Court effectively liquidated Roe v Wade, scholars of social movements and abortion rights shook their heads – but not in disbelief. Though most of them assuredly abhorred the decision, it dovetailed neatly with the dominant theorization of the relations between courts and movements. The Court –the  theory goes – was reflecting the triumph of a “long movement” – one that went back to the reaction to Roe and its amplification of a movement reflected in rightwing organizations like the Federalist Society and the realization of conservative politicians like Ronald Reagan that they could win by embracing the agenda of the Christian Right. “You cannot support me,” Reagan famously said to his Christian conservative listeners; “But I can support you!”

Echoing a point she made in a law review article she co-authored with Robert Post a decade and a half earlier and writing in the Washington Post the day after Dobbs was officially handed down, Reva Siegel wrote of the originalist movement that led to the defeat of Roe:

Reversing Roe has been the animating goal of the conservative legal movement since it mobilized under the banner of originalism during the Reagan administration. Far from setting aside politics in favor of a neutral interpretation of law, Alito’s decision reveals how conservative judges encode movement goals and values under cover of highly selective historical claims.

The thinking of scholars like Siegel about movement-inflected court decisions of course goes back to the Brown decision. That case sparked controversy over whether and when movements can effectively bring about policy change through litigation strategies. Some argued that the decision to end school segregation was the result of the efforts of the “long” civil rights movement, and in a formal sense, it surely was. But in his thoroughly researched book, The Hollow Hope, political scientist Gerald Rosenberg argued that it is a mistake for movements to bet on litigation, since Brown triggered a powerful counter-movement of segregationists that held up implementation of the Court’s decision until well into the next decade.

Rosenberg’s dismissal of the power of movements to advance rights through litigation was much criticized – by, among others, Michael McCann, who put forward a more capacious concept of the law, one that went well beyond litigation. With such a conception, McCann argued, the interactions between the movement and the law were not as easily dismissed as Rosenberg thought.

Yet both Rosenberg and McCann were focused on the effect of movements on the courts; in their debate, neither one examined the converse relationship; the effect of significant court decisions on movements, on their organizations, and on what sociologist Charles Tilly characterized as their “repertoires of contention.”

Support for Horrible Politicians (Trump-Focused Edition)

by Neil H. Buchanan

Yesterday, in "Support for Horrible Politicians (Herschel Walker and Liz Truss edition, with cameos by Donald Trump and Bill Clinton)," Professor Dorf commented on the nonstop series of disqualifying scandals engulfing Republican candidate Herschel Walker -- a column that of necessity had to include an acknowledgement that those scandals might not be disqualifying enough to make Walker lose his race against Senator Raphael Warnock.  Why?  Because power.  That is, for Republicans who want to take back the Senate and exercise/abuse the power that their renewed majority status would bring, "support for Walker--or for Satan himself were he to run as a Republican--is instrumentally rational," as Dorf put it.

That is surely true and interesting, and it is merely the leaping off point for the rest of yesterday's column.  Notably, in the less than 24 hours since that column was published, the second politician named in its headline -- Liz Truss -- informed King Charles III that she is resigning as Prime Minister of the United Kingdom of Great Britain and Northern Ireland.  Why did I not simply write: "Truss announced that she's quitting"?  Highlighting the monarchist aspects of the UK's political system, while reporting the fact that their democracy has become utterly chaotic (with the unholy alliance between Nigel Farage and Boris Johnson having finally broken the system so badly that they now cannot even keep a PM in office for two months), makes it especially poignant to note the odd reality that their democracy is still in better shape than ours.

Truss, after all, left in disgrace, because even her own party's supporters stopped supporting her.  As Dorf pointed out yesterday, that is impossible to imagine here.  It is not only impossible to imagine in situations like Walker's, where the devil's bargain is obvious.  It is barely possible to imagine it happening in the US even when swapping out damaged goods for someone less awful would not threaten anyone's power.

Here, I want to explore the deeper explanation that yesterday's column offered for that bipartisan reality: "a rally-'round-our-leader/nominee phenomenon."  I think that is right, but I think it also misses something important about the difference between Republicans and Democrats.  And a more complete explanation will remind us just how central bigotry and hatred are to the American conservative movement today.

Support for Horrible Politicians (Herschel Walker and Liz Truss edition, with cameos by Donald Trump and Bill Clinton)

by Michael C. Dorf

Why are most Georgia Republicans and the national Republican Party's leaders and donors still supporting Herschel Walker for Senate, even after learning that he is a shameless hypocrite who condemns absentee fathers and abortion even as he is an absentee father who encouraged and paid for an abortion for a woman whom he impregnated (and who had the abortion and, despite further abortion advocacy from Walker, later birthed one of those children whom Walker abandoned)? I suppose that for some, perhaps many, of the conspiracy-theory-minded rank-and-file members, it's because they disbelieve all negative news stories about their team.

But many other Republicans acknowledge that Walker is a loathsome hypocrite. Still they regard his very serious personal failings as much less important than control of the Senate, where he will surely be a reliable vote for the party's agenda. Given their goals, support for Walker--or for Satan himself were he to run as a Republican--is instrumentally rational.

That said, I'm probably giving most Georgia Republican voters too much credit. Just as Donald Trump's loathsomeness is a feature, not a bug, for his supporters, so I have little doubt that a great many of Georgia Republicans have persuaded themselves that Walker's abandonment of his children and hypocrisy are indications of his "toughness" or some other self-serving nonsense. After all, Walker won the GOP primary by an overwhelming margin.

How Does the Conventional Wisdom Become Conventional?

by Neil H. Buchanan

How does everybody know what "everybody knows"?  That question has been lurking just under the surface in my writings recently, as I have been pushing back yet again against the widespread quasi-religious belief that DEBT IS HORRIBLE, HORRIBLE, HORRIBLE!  Last week, The New York Times offered a particularly silly example of the everybody-knows-the-national-debt-is-a-problem genre of news analysis -- lacking both news and analysis -- and I had a great deal of fun picking it all apart in a two-part Verdict column, followed by a complementary Dorf on Law column on Thursday.

Today, I followed up that onslaught by writing another Verdict column that was mostly dedicated to answering a question that I had raised and only partly answered in last week's writings: Why is it true (and not a problem) that the national debt only goes up and never down?  Unsurprisingly, I have written about that topic many times, including in a symposium piece ten years ago: Why We Should Never Pay Down the National Debt.

Before getting into that topic in today's column, however, I offered a theory about why The Times publishes this rubbish on such a regular basis:

I should say that the answer to the question in last week’s Verdict column—Why does The Times publish baseless anti-debt propaganda?—has a fully cynical explanation, which is that there is a market for this kind of nonsense. The Times largely sets the agenda for the rest of the American media landscape, and they know that any story about the supposedly super-scary national debt will always generate buzz. It is a topic that seems very sober and serious, it is complicated and intimidating, and it has a simplistic morality tale at its core. They publish stories about it because there is an audience.

Upon further reflection, that explanation seems true but incomplete in an important way.  Here, I want to go deeper into the question posed by the title of this column: How Does the Conventional Wisdom Become Conventional?

Of the Federalist Society and Civil Discourse

 By Eric Segall

Over the course of the next few weeks, I will be participating in a virtual debate with Professor Ilan Wurman over the alleged return of living constitutionalism (it never went away) for the national student section of the Federalist Society, and then will be talking about affirmative action at a panel at the National Federalist Society Lawyer's Convention (with Michael Carvin among others, so watch out). Many of my progressive friends in the academy will not speak at any Federalist Society events, some will speak only at events sponsored by the students at their schools, and some agree to speak if they are interested and available. In the first two categories are prominent folks I respect quite a bit so I have given much thought to my participation in Federalist Society events. When I announce these programs on Twitter or other places I sometimes get serious pushback, so I wanted explain my reasoning for participating in these programs, and at the same time suggest something important I have been seeing at these events over the last couple of years.

Animal Welfare Everywhere

 by Michael C. Dorf

My most recent Verdict column discusses Tuesday's SCOTUS oral argument in National Pork Producers Council (NPPC) v. Ross, the pork industry’s challenge to California’s Proposition 12, which bans the sale of meat produced by confining pigs in gestation crates and in other ways that fail to satisfy California's humane treatment standards. The column follows up on an August Verdict column in which I pondered the potential implications of a victory for California for red-state efforts to ban the importation of abortion pills from other states. Although this week's argument did not focus on abortion pills, the Justices' questions revealed that they are concerned about the implications of a victory for either side. My column concludes that there are slippery slopes in either direction and that therefore perhaps the Court should leave the matter to political processes at the state level (where price-conscious consumers give out-of-state producers virtual representation) and in Congress (which can enact federal laws pre-empting state laws that unduly burden interstate commerce).

Regular readers of my work may be disappointed to discover that my discussion of the Prop 12 case in both columns addresses broad issues regarding the scope of the Dormant Commerce Clause but fails to contextualize the case with regard to animal welfare. In today's essay, I remedy that gap.

I'll say a few words about the half a million pigs slaughtered in the U.S. every day to feed Americans' taste for pork, as well as two particular pigs who avoided that fate thanks to the efforts of Wayne Hsiung and Paul Picklesimer. Their open rescue of Lily and Lizzie led to an expensive federal investigation and felony charges in state court in Utah. Despite the trial judge's exclusion of nearly all the evidence of the cruel conditions at the Smithfield facility from which Hsiung and Picklesimer rescued Lily and Lizzie, last week a jury drawn from "a part of rural Utah whose economy is largely tied to the fortunes of agricultural giants like Smithfield" acquitted them on all charges. (The quotation marks in that last sentence enclose language drawn from an excellent NY Times article following the acquittal. An article in The Intercept also provides a useful account of the case.)

Hsiung is the co-founder and Picklesimer is a member of Direct Action Everywhere (DxE), a network of activists who, as their name suggests, take direct (but always nonviolent) action to challenge the injustice of the status quo. I'm going to use the  DxE acquittals and the Prop 12 case to discuss a topic that I have addressed on occasion in the past and that occupied Professor Sherry Colb and me in Chapter 5 of our book Beating Hearts: Abortion and Animal Rights--the relation between laws and other efforts to reduce the cruelty of animal agriculture, on one hand, and efforts to abolish animal agriculture, on the other hand.

Economic Policy as Religious Dogma: Why Prove Anything When You Can Believe it as a Matter of Faith?

by Neil H. Buchanan

When did economic policy become a matter of faith?  I am not talking about fringe grifts like the "prosperity gospel," nor am I asking why White Christians in this country have long been intensely loyal to the Republican Party's extreme version of corporate capitalism (which requires them to perform impressive mental gymnastics to clear some rather imposing scriptural hurdles).

I am not, in fact, talking about organized religion at all.  My focus here is on the evidence-resistant, stubborn presumptions about economics and other secular issues that we see every day among politicians and commentators, revealing that they are in fact not engaged in reasoned debate but are instead committed to beyond-logic truths that can never be challenged.  This is the essence of religious belief: truth without reason.  (That is not a criticism, because it is what belief is all about.  See countless links here.)

One of my first scholarly publications begins with a quote from two economists who, after summarizing the weak empirical and theoretical case for a particular economic theory (that tax cuts will stimulate business investment, not that it matters to the point here), noted that many economists were sticking with that long-discredited theory. They concluded that such continued belief in the theory "must ... rest essentially on faith.  Faith is indeed sometimes rewarded.  But for our part, in this instance, we remain agnostic."

This kind of quasi-religious belief structure has become ubiquitous on the (election-denying) American right.  For example, in response to my Dorf on Law column two days ago, part of which included a critique of libertarians' hatred of central banks, one reader responded via private email: "As an economic philosophy, Libertarianism is nothing more than a cult."  He went on to note that the Rand Paul types are committed to a canon of non-falsifiable beliefs, such that (for example) they are sure that the Gold Standard was never at fault, even when it caused massive problems, and that it would have solved every problem in the decades since then, if only the nonbelievers would have brought Hard Money Heaven back to earth.  (My words, not his.)

My other writing this week deals with a topic that is just as faith-based as any of the other quasi-religious policy commitments that we see in American life: the presumed horrors of government debt.  What makes this topic especially annoying, however, is that the apostles of the faith would insist that they are not elevating belief above reason at all, assuring us (and themselves) that they are being "hard-headed realists" and are utterly non-ideological.  True-believing libertarians can at least admit that they are engaged in an ideological battle.  But the debt-haters are cultists, too, and their self-delusion continues to matter.

A Requirement of Colorblindness in University Admissions is Constitutionally Unjustifiable and Impossible in Practice

 By Eric Segall

On Halloween day, the Supreme Court will hear two cases involving the use of racial criteria in university admissions. The plaintiff in both lawsuits is Students For Fair Admissions (SFFA ), a non-profit association long committed to asking the Supreme Court to take control of thousands of colleges and universities across America and prohibiting them from considering the race of their applicants in any way. One of these cases, against Harvard, is brought under a federal statute, and the other, against the University of North Carolina at Chapel Hill (UNC), is brought under the federal Constitution. I will leave the Harvard case to statutory interpretation experts. This post is about the United States Constitution.

Part I of this post addresses the legal issues surrounding a constitutionally required color-blindness rule. Part II shows why such a requirement would, in any event, be extremely difficult to enforce, leading to costly, lengthy, and disruptive litigation in the federal courts that won't, in any event, remove race completely from university admissions. Such a formal rule would simply drive that use further underground.

How Did We Luck Out at the Fed?

by Neil H. Buchanan

This is the season that the Nobel Prizes are given out, including the fake one for "economic sciences."  I have written more than enough rants about the faux-Nobel in economics over the years, so I will spare longtime Dorf on Law readers another detour down that blind alley.  (Those who are interested or were unaware of the fraudulence of that prize, however, can click here.)

Instead, I will use today's column to comment on one of this year's recipients of the Sveriges Riksbank Prize in Economic Sciences in Memory of Alfred Nobel, the former Princeton professor and former Fed Chair Ben Bernanke.  After describing Bernanke's economy-saving work at the Fed, I will then ask how we -- a country that has seen its governing institutions go from bad to worse -- have somehow created and maintained such a fantastic central bank.  Short answer: Lucky, I guess.

I am not arguing that the Fed is perfect.  As I will explain (again) below, I think the Fed is making a big mistake right now; and I am not alone.  That mistake, moreover, could destroy the US and global economies, thus removing the tiny remaining hope that liberal democracy can survive the Trump/Brexit/Orban/Balsonaro/Brothers-of-Italy resurgence of fascism.

That is, to say the least, a rather important caveat.  Even so, the Fed is arguably the best central bank that anyone could reasonably hope to have created, and its current mistake is at least a matter of good faith.  Small consolation, perhaps, but important nonetheless.

Marijuana Legalization Obstacles and the Frequently False Promise of Veto Gates

 by Michael C. Dorf

On Thursday, President Biden pardoned thousands of people who had been convicted on federal charges of simple possession of marijuana. To be clear, none of those people were in prison. Still, as the president explained, a felony conviction stands as a substantial obstacle to employment and full participation in public life. Given how common marijuana use is, it was profoundly unfair that the people who happened to have simple possession convictions--disproportionately people of color, as the president also noted--were burdened with the concrete and stigmatic disadvantages they bore. I applaud the pardons.

That said, the pardons do not cover people who were convicted of selling marijuana. Nor do they cover people convicted for violating state laws, because the president lacks power to issue pardons for state crimes. These pardons thus do not solve the problem of marijuana criminalization, which would require federal legislation removing "marihuana" (and related terms) from the statutory list of Schedule I substances.

After saying a bit more about what I mean by "solving" the marijuana criminalization problem, I'll explain why the political obstacles to action in Congress undercut a frequently repeated claim about the supposed benefit of so-called veto gates to legislation.

Republican-Appointed Judges Try to Punish Yale for ... Something

by Neil H. Buchanan

Given the target audience of Dorf on Law, the odds are that a relatively large number of our readers are former judicial clerks.  Another group of readers includes lawyers whose friends and associates have held clerkships, while some readers might not be familiar with the phenomenon of clerking at all.  A recent kerfuffle coming out of right-wing judicial circles offers interesting tidbits for everyone, no matter which group one happens to be in.

The short version of the story is that some Republican-appointed federal judges have decided to punish Yale Law School's students because of "cancel culture," or something.  It is surely a classic example of group blame, but it is also a reminder that having the word "Judge" in front of a conservative lawyer's name does not stop them from spending all of their time in the fever swamps.

To be sure, the now-infamous Judge Aileen Cannon has -- entirely on her own -- made it clear just how ridiculously partisan a Trump-appointed judge can be.  Every step she has taken in the Mar-a-Lago search warrant case has been mocked mercilessly (with "deeply problematic" being the kindest description that I have seen of her poor reasoning), while a screw-up that was reported yesterday makes her look even more ridiculous.  The Eleventh Circuit panel's unanimous rebuke of her original ruling in Donald Trump's favor made it clear that what she is doing is beyond the pale, even for a panel that included two other Trump appointees.

Even so, the very fact that those Trump appointees were not in the tank for their political patron suggests that there might still be some non-partisanship and integrity left in our judicial system (at least below the Supreme Court).  Still, judges are people, and it very much matters where they get their information.  Unfortunately, too many Republican judges appear to be listening to people on Fox News who most definitely are not journalists.  What could go wrong?

Is Justice Jackson an Originalist? Evidence from the Alabama Voting Rights Oral Argument

by Michael C. Dorf

During Tuesday's oral argument in Merrill v. Milligan, Justice Jackson made an originalist move to resist the core contention of the Alabama Solicitor General, Edmund LaCour. He asked the Court to hold that in order to meet their initial burden of production in challenging a state's redistricting plan under Section 2 of the Voting Rights Act (VRA), the plaintiffs must come forward with an alternative map that: (a) provides minority voters with a greater opportunity to elect representatives of their choosing; (b) respects traditional districting criteria (such as compactness, contiguity, and preservation of political units); and (c) does all of that without expressly considering race. Move (c) was the critical one. As various Justices (especially Kagan) and US Solicitor General Prelogar noted, a requirement of race-neutrality as part of the prima facie case would depart from past precedent construing so-called Gingles step 1 (so-named for the case of Thornburg v. Gingles).

LaCour had two primary responses. First, he tried--mostly unsuccessfully--to say that Gingles step 1 and the subsequent cases already contain or at least do not rule out a requirement of race-neutrality in the construction of the plaintiffs' alternative map. Second, he contended that if the state itself would be constitutionally forbidden from making race the "predominant factor" in drawing its maps (as the Court's cases say), then it makes little sense to allow VRA plaintiffs to satisfy their prima facie burden by doing so. Some Justices and lawyers pushed back by pointing to precedents and highlighting the difference between a prima facie case and the ultimate grounds for decision. Others--especially Justice Alito--seemed quite sympathetic to LaCour's argument.

Justice Jackson pushed back on LaCour's argument in a more fundamental way. She said that the Constitution would not be an obstacle to the state itself using race to draw a map with two majority-minority districts (rather than the one such district drawn by Alabama) because the Constitution does not require race neutrality. Why not? Because the framers and ratifiers of the Fourteenth and Fifteenth Amendments intended and expected that they would allow for expressly race-based remedies for racial subordination.

Justice Jackson's originalist argument may feel exhilarating, as it hoists the conservatives by their own petard. It's a kind of constitutional jujitsu. Nonetheless, liberal originalism has the same vices as conservative originalism. And as I explain below, it won't work.

Inspiration in Times of Desperation: A Review of Dahlia Lithwick's "Lady Justice"

 By Eric Segall

These are trying, scary, and dangerous times for the American left. Despite Democrats having control of both Houses of Congress and the Presidency, there is so much for people committed to gender equality, LGBTQ rights, and democracy to worry about. The Supreme Court ended abortion rights and enlarged gun rights last term, and this year will likely prohibit all affirmative action, further narrow the Voting Rights Act, and continue to privilege religion over virtually all other values. Additionally, the Court may rule that state legislatures engaged in voter suppression and partisan redistricting cannot be controlled by either state supreme courts or state governors. At the same time, large red states such as Florida and Texas have governors who lead in a Trumpian style, except with more political sophistication. In short, as Neil Buchannan has documented on this blog, our country is in real trouble.

In the face of these dire threats, SLATE columnist and Supreme Court reporter Dahlia Lithwick's new book Lady Justice: Women, The Law, and the Battle to Save America, provides glimmers of hope as well as inspiring tales of remarkable women who fought the good fights during the Trump Presidency. Sandwiched between an Introduction and an Epilogue are the stories of numerous women who took on the Trump Administration in the courts, in the streets, and in the halls of government.

Lithwick is one of the best political writers of our generation, so she tells the tales with a flourish and a style that makes the book enjoyable and accessible. This is a book for everyone, not just readers interested in politics and law. Her progressive perspective does come through in every chapter, so conservatives and Trumpians might be offended by the narrative, but, and this wish I know is mostly fanciful, folks on the right could do much worse than expose themselves to the remarkable women who come alive for us in this book.

Our Minds Have Been Warped by Decades of Anti-Tax Propaganda

by Neil H. Buchanan

As I tried to come up with a title for this column, one of my first ideas was: "Is Anyone Really For Taxes?"  That title makes its own kind of sense, because it is a way of acknowledging that even people like me who defend the basic contours of the US tax system -- and who argue that it should be more progressive and should collect more revenues -- do so somewhat reluctantly.  "Sure, it would be nice to live in a world in which taxes were unnecessary," we might say, carefully using the subjunctive form, "but given that such worlds cannot exist, we can be in favor of taxes without wanting to impose unnecessarily high taxes."

That such an argument is true does not change the reality that it is a disastrously defensive position, all but begging the mindless anti-tax people to respond, "See, even the libs hate taxes deep down!"  But the fact is that everyone should love taxes, and we should be clear about what that means.  People who are not on the hard right (that is, not only progressives or even merely the center-left, but everyone who is not effectively an anarchist or a nihilist) are so accustomed to deflecting the cheap tax-cut propaganda and pandering by Republicans, attempting to play to people's supposedly anti-government instincts, that the American political conversation is all but incapable of having a sensible conversation about taxes or even about basic concepts of politics.

These thoughts flow inevitably from my new Verdict column (the first piece on that platform that I have written since June, after an unplanned summer hiatus), published yesterday: "The Declaration of Independence Was a Call for More Government and More Taxes—And That’s Still an Important Lesson for Us Today."  In that column I explain that, from the very beginnings of the United States, even the tiny sliver of the human beings who were allowed to have a say in the governance of this country were pro-government and pro-taxes.  Why do we imagine (or perhaps pretend) otherwise?

Meloni and Trump: A Strange Silence (Guest post by Sidney Tarrow)

by Sidney Tarrow

When Giorgia Meloni, the leader of Italy’s “Brothers of Italy” party came first in the Italian national election on September 25th, pundits were quick to underscore her links to America’s panoply of rightwing politicians and media figures. Following her triumph, wrote Yahoo News, “several Republicans praised her win.” Sen. Ted Cruz, R-Texas, hailed the results as  “spectacular,” while Sen. Tom Cotton, R-Ark., tweeted that he looked “forward to working with her,” and Rep. Marjorie Taylor Greene, R-Ga congratulated her on her victory, while Fox News’s Tucker Carlson, called for a Meloni-like future for the United States.

A “revolution?” Carlson might not have noted that Meloni’s party won only 26 percent of the vote, compared to the 19 percent gained by its major center-left opponent, the Democratici, or that she will need to ride herd on a motley collection of other rightwing parties, led by former premier Silvio Berlusconi. She does not share Berlusconi’s enthusiasm for Vladimir Putin or the anti-statism of her other main ally, Matteo Salvini, many of whose voters she captured on September 25th.