Final Classic of the Year: The Morality of Abortion

 by Michael C. Dorf

[The following essay first appeared on the blog on July 3, 2017 under the title Can Non-Sentient Entities Have Interests? (and Other Questions Raised by a Recent Review of Our Book). I thought it an appropriate piece to re-post as the last classic of the year in light of the urgency questions about abortion have taken on post-Dobbs. I also thought it appropriate, as it reflects not only my views but also Sherry Colb's. The essay takes the form of a response to a book review, but it's more important as an exegesis of a view about when abortion is and isn't immoral, as well as about the proper relation between that kind of question and the law.]

The latest issue of Between the Species, an online philosophy journal, contains a review by Philosophy Professor Mylan Engel, Jr., of my book with Professor Sherry Colb, Beating Hearts: Abortion and Animal Rights. (Engel's paper is styled an "article" because it is substantially longer than most of the book reviews the journal publishes, but for simplicity I'll call it a review.) Engel's review is generous and thoughtful. Professor Colb and I are grateful for his overall assessment and especially for his conclusion that our book "would make an exceptionally useful supplemental text for any contemporary moral issues course that includes sections on abortion and animal ethics," including his own such course.

As one would expect from any serious scholar, even though Engel agrees with our core thesis and argument, he does not spare us criticism with respect to areas of disagreement. In this essay, I'll respond to a number of Engel's critiques. By way of preview, Engel's most pointed criticism addresses our contention that abortions of pre-sentient fetuses are not immoral because an entity that is not and has never been sentient lacks interests and thus cannot be harmed. Engel's review expands on points he made at a panel on our book in 2016, and my response here will largely track what Professor Colb said in response at the time. I'll also address a number of Engel's other points. However, before taking the gloves off, as it were, I want to re-emphasize that I am truly grateful for Engel's serious engagement with our book. As a scholar, it is much better to be vigorously critiqued than blandly praised or, much worse, ignored.

Sociopathy, Antisocial Politicians, and Republicans Before Trump (a Dorf on Law Classic)

Note to Readers: For my final "classic" of the holiday season, I continue my theme of looking at the Republican Party in the years before its Trumpian turn.  From just over ten years ago (October 26, 2012), this column discusses what it means to be sociopathic in the political context and how the Republican Party had by 2012 already taken a dramatic turn toward antisocial dysfunction.

Calling It As It Is

-- Posted by Neil H. Buchanan

In my new Verdict column, published yesterday, I describe the current leadership of the Republican Party -- very much including Mitt Romney and Paul Ryan -- as "sociopathic."  Needless to say, I did not do so lightly.  This is not a matter of mere name-calling, where (for example) Obama-haters empty their limited thesauruses by calling him a communist, fascist, socialistic Kenyan.  All of these words actually have meanings, and sociopathy does as well.

As I explain in my column, sociopaths display extreme anti-social tendencies, being willing to violate norms that apply to others in the self-centered pursuit of their own immediate gain.  These antisocial attitudes are manifested in "a pattern of behavior in which social norms and the rights of others are persistently violated," and in a person's "disregard for social norms, rules, and obligations."  As I describe in the column, when one starts to look at even a small sample of what the current Party leadership stands for -- often in direct contravention to the wishes of the majority of its own voters, such as (for one of many examples) the leadership's extreme views on abortion -- as well as how it is willing to pursue its ends, the picture of sociopathy comes quickly into focus.

In short, we are not talking about reasoned disagreements over whether, for example, cap-and-trade is a better approach to mitigating environmental damage than carbon taxes (which was, in fact, still a Republican-versus-Democratic point of disagreement only a few years ago).  We are now talking about a group of people who have decided that they do not need to engage with reality anymore, who feel completely justified in repeating the most blatant lies in the pursuit of their own advantage, and who show no hesitation in pursuing policies that harm others.

Having grown up in an extended family of Republicans (including my parents, who supported Rockefeller and -- yes -- George Romney at various points), I have been fascinated by the phenomenon that is the modern (essentially, post-1980) Republican Party, and the conservative movement that has taken it over.  I keep expecting the party to "jump the shark," each time something especially crazy happens, but the willingness of the party's base to stick with the increasingly sociopathic leadership continues to surprise.

John Dean has reported on research that suggests that about 25% of the country (about half of Republicans) would vote for an out-and-out fascist candidate, because those voters are "followers" in the deep sense that they are more interested in obeying authority (and, more to the point, making othered people suffer under an authoritarian regime) than they are in the content of any particular economic or social policies.  Even so, a party that had only 25% support in the country would quickly wither and die.

The continued viability of a party run by sociopaths (but supported in large part by voters who are healthy, functioning people) is thus a mystery.  As time passes, some conservatives have simply given up on the party.  I do not know what it will take for others to follow, for example, David Frum's lead and say that enough is enough.  I do know that -- especially when one considers the openness of the Democratic leadership (and Obama in particular) to blatantly conservative policy ideas, such as cutting Social Security -- this is no longer about liberal-versus-conservative policy differences.

As I noted above, the modern Republican leadership's antisocial extremism can be seen both in its goals and in its methods.  As a matter of goals, the economic and social agendas of the Party have become efforts to take things away from "undeserving" others.  Women, apparently, do not deserve the right to control their own bodies (not just regarding abortion, but now even with regard to contraception), unless they are economically elite enough to sidestep the laws that would be imposed on other women.  I note in my Verdict column that Eric Cantor (the second-highest-ranking Republican in the House, and a co-author of a conservative movement manifesto with Paul Ryan) has specifically insisted that nutrition programs for poor children be cut as part of any budget deal.  It is one thing to insist on ideologically motivated cuts to NPR and Planned Parenthood, which would devastate those programs but save virtually no money.  We are now talking about harming poor children, just to prove that we can cut the budget, while fighting like crazy to preserve every last dollar of a bloated military budget -- and, of course, to resist any increase in taxes on the rich.

This moral disconnect -- the willingness to engage in policies that would harm vulnerable people, simply to make a point -- has become increasingly clear in the last few years.  The immigrant-bashing that Republicans have embraced (even turning on George W. Bush and Rick Perry for daring to worry about being "humane") is another area where it is impossible to ignore the pure cruelty of the Republican leadership.  Even military veterans are not safe.  Two nights ago, Jon Stewart dedicated his show to a discussion of how budget-cutting zeal by Senate Republicans derailed a bill to spend $1 billion (0.026% of the federal budget) on a program to help veterans use their skills in civilian jobs.  In the final Presidential debate, Barack Obama correctly said that Mitt Romney's "five-point plan" is actually a one-point plan: the economic elite get to play by a different set of rules, no matter how much it harms everyone else.

And speaking of that "five-point plan," it is worth thinking again about the change in tactics that we have seen over the years, especially in this election.  We now see that Republican candidates no longer bother to try to tether their policies to reality, or to respond to reality-based arguments.  Romney's five-point plan is not a plan, but rather (at most) a statement of gauzy goals (supporting small business, improving education, energy independence).  When pressed for specifics, he simply repeats himself, or relies on the bizarre idea that he can go to Congress with no specifics and "negotiate bipartisanly," or something.

Paul Ryan's deliberate detachment from reality is especially breathtaking.  In a recent speech, he defended a plan that would ultimately (but surreptitiously) cut off poor people from federal support programs as a way to help "restore mobility."  It was just the standard "dependency" meme, and he even managed to contradict his own running mate by proposing severe cuts in Food Stamps.  Anyone who thinks that the "Moderate Mitt" that has emerged in the last month is the "Real Romney" need only look at Ryan and his sponsors, and their supreme confidence that Romney will just be a puppet who signs what they tell him to sign.

None of this matters, apparently.  Ryan and Romney have shown again and again that they do not care what they are saying, so long as it serves an immediate purpose.  Those who hoped that Ryan's inclusion on the ticket would result in an "honest debate" between economic libertarians and everyone else have seen, instead, a candidate who simply says (like his running mate) that up is down and in is out, so long as he says what he thinks people want to hear.  His message is: "We will help people," even as he outlines a plan to harm people.  (In the Vice Presidential debate, he even managed to outdo himself in vacuousness and evasiveness when he said -- twice! -- that the right time to use military force is when "it is in the national security interests of the people of the United States."  Thank you for that helpful guidance.)

No one would claim that politics is about truth and purity.  There has been ugliness in U.S. politics forever, with hardball tactics and outright fraud across the ideological spectrum.  But a party leadership that thinks nothing of the degree and extent of the lies and evasions of the Romney/Ryan ticket, in the service of an agenda that will further entrench the economic interests of a fraction of the 1%, has gone beyond the pale.  Their "disregard for social norms, rules, and obligations" has become impossible to ignore.

Blame Trump, A Trump-Appointed Judge, and SCOTUS For Title 42's Perpetuation, But Also Blame the Biden Administration (New Content!)

 by Michael C. Dorf

Yesterday the Supreme Court--by a 5-4 shadow docket ruling--extended the stay previously granted by the Chief Justice of a DC Circuit decision that denied Arizona and other states intervention to defend the Title 42 protocols that deny asylum seekers entry into the U.S. via the usual process to which they're entitled. If you had on your Bingo card the Democratic appointees plus Justice Gorsuch dissenting (in a published dissent joined by Justice Jackson), congratulations. That was the lineup in Arizona v. Majorkas.

The case as it reaches SCOTUS does not involve the merits. The Court stayed the DC Circuit judgment so that it could resolve only the intervention question following expedited briefing and plenary argument in February. As a practical matter, that means that the Title 42 protocols will remain in effect for now, even though yesterday's per curiam order states that it "precludes giving effect to the District Court order setting aside and vacating the Title 42 policy; the stay itself does not prevent the federal government from taking any action with respect to that policy."

What other action with respect to the policy could the Biden administration take? Well, in principle it could take new administrative action to abandon the Title 42 protocols, but the first time it tried to do that, it was enjoined to keep Title 42 in place by a different federal district court judge (a Trump appointee), who thought the rescission was procedurally flawed. It is conceivable that between now and when SCOTUS rules on the intervention issue some time this spring or summer, the administration could rescind the Title 42 procedures in a way that doesn't get enjoined, but that seems highly unlikely.

On the surface, therefore, it might look like a policy adopted by Trump has been perpetuated by a Trump-appointed judge and a Trump-backed SCOTUS. And that's mostly true. But not entirely. For one thing, as noted, Justice Gorsuch--one of the three Trump appointees to SCOTUS--dissented. More fundamentally, had the Biden administration acted with greater alacrity, it could have long ago rescinded the policy in a manner that would have withstood legal challenge.

Government as All-Powerful Demon: The Emptiness of Pre-Trumpian Conservatism (a Dorf on Law classic)

Note to readers: Frankly, it bothers me that there is nothing new to read or watch this week.  There is very little new content in the major papers, the late-night comedy shows are on hiatus, and pretty much everything else is on autopilot.  This is in part because both Christmas and New Years Day -- which are both legal holidays, notwithstanding (for the former holiday) the separation of church and state (or what remains of it) -- happen to fall on a Sunday this year.  But in any event, everyone seems to be on vacation right now.

Including us!  Even Americans, who notoriously refuse to take time off, have decided that this is a dead zone.  But at least we here at Dorf on Law are willing to dig into our archives to find classic columns that resonate with current events.  With the post-midterms discussion having now turned to the once-unimaginable idea that the Republican Party might turn against Donald Trump, I am continuing my Classics theme (which I began last Thursday) of reviving columns that discuss how wrong it is to believe that a post-Trump Republican Party can return to something resembling a healthy conservative party.  Even before Trump, it had long since stopped being anything resembling the party of Bob Dole (much less Gerald Ford), which was not particularly healthy in any event.  And it is not going back.

Government as All-Powerful Demon: The Emptiness of Pre-Trumpian Conservatism

by Neil H. Buchanan

 

Big Bird (who, I now know, is supposedly six-years-old) publicly announced that he had been vaccinated as soon as anti-Covid shots were approved for school-aged children. Ted Cruz found out about this and -- not having any interest in doing his job -- used his Twitter-troll time this week to grumble: "Government propaganda ... for your 5-year-old."

 

Notwithstanding the various forms of snark that I tossed into the paragraph above, Cruz is not my focus here.  He happens to be endlessly mockable, but I want to use his own-the-libs tweet simply as a recent, vivid example of something that conservatives have been doing for generations: personifying and then vilifying this thing called The Government.

 

This particular culture-war moment will soon be forgotten.  What is interesting is that even after having become completely Trumpified, movement conservatism still lapses back into tired tropes about Big Brother.  Is it good news that they still have nothing to say that is non-embarrassing?

 

An Oldie but Goodie: What Would You Do If You Were a Supreme Court Justice?

 By Eric Segall

Many people aren’t working this week or working less, so as Mike and Neil explained yesterday and the day before, we thought it would be a good time to repost timeless essays. This one originally ran in 2015. It asks the question: “What would you do if you were a Supreme Court Justice?” Happy Holidays!

A Holiday Classic on Hanukkah, Thanksgiving, and Christmas

by Michael C. Dorf

As Prof Buchanan noted yesterday, for the holidays, we hear at DoL will be running "classics," i.e., reruns. For your reading pleasure, below I reproduce an essay that first ran on Thanksgiving, 2013. If you're starved for more recent content, you can also check out my latest Verdict column: Lessons from Sam Bankman-Fried’s Brief Stay in a Bahamian Jail. Okay, here's the classic:

The True Meaning of Thanksgivingukkah

Today is "Thanksgivingukkah," the extraordinarily rare--as in once in 70,000 years--convergence of Thanksgiving and the first day of Hanukkah. The strange confluence has provided pundits with the opportunity to promote oddball recipes like turkey corpse cooked in Maneschewitz wine or sweet-potato latkes. For me, as both a vegan and an ethnically-identifying-but-non-religious American Jew, the coincidence of these two problematic holidays provides an interesting opportunity for reflection. I find that the two holidays are in some ways mirror images: The core message of Thanksgiving was a pleasant lie but the holiday has become a horror show, whereas Hanukkah's origins are terrible but it has become mostly harmless.  Let me explain.

The Slide Toward Autocracy Began Long Ago (a Dorf on Law Classic)

Note to readers: Beginning today and running through the end of 2022, we here at Dorf on Law will be on our annual December hiatus, as part of which we will re-publish "classic columns" that strike us as relevant and useful reading for those among us who continue to want to engage with ideas over the holidays.  We will, as always, keep our eyes out for breaking news that could inspire and justify writing a new column between now and the 1st, but otherwise, we will be recharging our batteries and wishing all of you the best.

by Neil H. Buchanan

The column below was first published on August 6, 2009 -- less than three years after the birth of Dorf on Law.  Upon re-reading it, I was depressed anew at how obvious the slide toward authoritarianism has been all along -- long preceding Donald Trump's time in the White House -- and how much worse things have gotten only in degree, but not in kind.

In the magazine business, what editors call a "big sentence" (a sentence from the text that is reprinted in large print as an inset in the text) would almost certainly have included these two:

"Still, there is strong reason to worry that we are seeing a new kind of politics that puts the lie to any notion of democracy in this country"; and [continued after the jump]

Were Trump's Lawyers Foot Soldiers or Ringleaders?

by Michael C. Dorf

“Ours is not a system of justice where foot soldiers go to jail and the masterminds and ringleaders get a pass." -- Rep. Jamie Raskin (D., Md.), member of House Select Committee to Investigate the January 6th Attack on the U.S. Capitol, Dec. 19, 2022.

--------

In the first years of the current millennium, Vice President Dick Cheney received considerable assistance from talented attorneys who offered at best extremely tendentious arguments for the lawfulness of what Cheney and others in the George W. Bush administration euphemistically termed "enhanced interrogation"--thus greenlighting a policy of torture. The main lawyers involved in the effort--David Addington (as counsel to the VP and known as "Cheney's Cheney"), Jay Bybee (Bush's first head of the Office of Legal Counsel), and John Yoo (Bybee's deputy)--were investigated but not prosecuted for war crimes by a Spanish judge and ultimately suffered only modest reputational consequences at home. Indeed, in the ensuing two decades, they have thrived. Addington followed his stint in the Bush White House with a soft landing at the Heritage Foundation. Bybee is a (now-senior) judge of the U.S. Court of Appeals for the Ninth Circuit. Yoo holds a chair on the faculty of UC-Berkeley Law and is an unapologetic public intellectual.

The key lawyers involved in Donald Trump's effort to overturn the 2020 election included opera-buffa clowns Rudy Giuliani and Sidney Powell, comparable in stature and ability to Bush's first Attorney General, Alberto Gonzales (who was also instrumental in authorizing torture). But while Giuliani's "normal scrutiny" and Powell's absurd conspiracy theories drew the most attention, Trump also had the aid of three lawyers with abilities and pre-Trump credentials roughly comparable to those of Addington, Bybee, and Yoo. John Eastman is a former SCOTUS clerk and was dean of an ABA-accredited law school. Jeffrey Clark was a well-respected attorney in private practice and government. Kenneth Chesebro was a talented private practitioner (about which more below the jump).

What comes around goes around.  The lawyers who served VP Dick Cheney by justifying torture escaped any real accountability for their deeds. Soon-to-be-former Congresswoman Liz Cheney played a pivotal, honorable, and courageous role as the tip of the January 6 Committee spear, unflinchingly demanding accountability from Donald Trump and his fellow seditionists, including her GOP colleagues. The committee's report names, among others, attorneys Eastman, Clark, and Chesebro. Yet the report and accompanying referrals carry only so much weight as the Justice Department gives them--and even then, the wheels of justice turn sufficiently slowly that it is possible to imagine all of the Trumpists and Trump himself running out the clock. In the end, the lawyers and others in the cross-hairs of Cheney-fille could end up as unscathed as those who served Cheney-père.

Should We Care About the Far Distant Future and Infinite Human(oid) Happiness?

by Neil H. Buchanan

Human beings will not be recognizably human forever.  Does that undermine our moral obligation to protect future not-human beings from harm, where possible?  From my perspective, the answer is almost certainly no, but that is because I am an ethical vegan, a viewpoint that quite explicitly defines our moral obligations not exclusively toward humans but toward any beings capable of sentience and the experience of pain.  Humans evolved from apes, going back to trilobites and single-celled organisms, but even if that were not true, the life forms that exist today that meet the threshold of ethical veganism's concerns are still worthy of our moral respect and -- at the very least -- should not be killed or tortured for our own pleasure.

I start today's column with this somewhat abstract observation because I want to return to the topic that, bizarrely, Sam Bankman-Fried's crypto collapse has suddenly made relevant: "effective altruism" (EA) and its sibling theories "earning to give" (ETG) and "longtermism."  Last week, both Professor Dorf and I wrote skeptical-to-scathing columns exploring those topics, with my take being notably harsher than Professor Dorf's, at least in tone.

The common bottom line was that there is nothing special about EA or its offshoots in one sense, because it is merely a different way of saying that people should be mindful about how they go about trying to achieve good things.  And although we both argued that it is unnecessary to use conservative utilitarian reasoning to be thus mindful, a person could do so and then defend their choices based on what they think should count as utility (and disutility).

But as my column emphasized at length, that is not what the EA "movement" and its adherents' commitments to ETG and longtermism are all about.  The philosophical pretensions of that movement suggest that there is a deep, deep way to think about human happiness that just so happens to justify the whims of the ever-grasping billionaires who conveniently fund thinktanks at top global universities and public relations campaigns that attempt to greenwash their extreme wealth.

Today, I want to add to that analysis by attempting to take seriously that which should not be taken seriously: the longtermist view that suggests that beings in the far distant future should weigh into -- and ultimately dominate -- our moral calculus.  As this is my last new column of 2022 and we think about the future, it seems somehow appropriate not to focus yet again on the death of democracy in the very near future (which is very much still a thing) and instead to ask whether these purportedly deep ideas are as flimsy as I argued that they are.  Spoiler alert: If anything, they are even flimsier than I suggested on Friday, which is saying something.

Top Ten Worst SCOTUS Moments of 2022

 By Eric Segall

This was a no good, terrible, very bad year at the Supreme Court of the United States. Here are my top ten worst moments of 2022 (in no particular order). 

This post is not about how much I disagree with almost all of the big cases from 2022 but rather about the moments that should be a reminder to us all that the six conservative justices who now control the highest court in the land are just, well, terrible, even apart from their votes.

The Effective Altruism Fig Leaf Never Truly Covered the Shame Underneath

by Neil H. Buchanan

If you are a smart, ambitious young person who wants to live a comfortable life, you can never go wrong by making it your business to tell rich people what they want to hear.  And what they want to hear is that they are gracious, wonderful paragons of virtue who deserve everyone's admiration and who should keep doing what they did to make all of that beautiful money.

I am fairly certain that the first time I saw a version of that statement was in an article written by the all-time great political economy professor John Kenneth Galbraith (also known for his critiques of "the conventional wisdom").  A short online search did not turn up a pithy quote, and it might not in fact have been from Galbraith; but in any event, the observation is plainly true.  One way to see this is by recalling the horrified response from the super-wealthy when Barack Obama hurt their feelings by saying that their financial activities might need to be regulated more effectively -- which Paul Krugman dubbed "the pathos of the plutocrats."

The most recent example of this phenomenon -- hyperrich people paying other people money to tell them what they love to hear -- is called "effective altruism" (EA), and it is a doozy.  To be clear, I am not saying that everyone who has written about EA or has supported some of its conclusions is on the take or a fool.  As I will discuss, there is a core of supportable ideas at the base of the EA morass, and it would be a shame if EA's exposure as a front for what we might call Muskism causes people to reject those good things.  But in any event, EA is another example of an intellectual movement that pulls people in by dangling obvious truths or a clever insight (or two) as bait and then going badly astray.

Here, I will briefly explain EA, which will be rather easy, given that Professor Dorf did such a good job of laying out its basics in a critical/skeptical column on the subject yesterday.  I will then add to the discussion by pointing out that the next step in the EA logic -- purporting to maximize human happiness over the space of quadrillions of years -- is all but designed to greenwash today's billionaires' ill-gotten loot.

(Re-)Assessing Effective Altruism and Earning to Give After Sam Bankman-Fried

by Michael C. Dorf

Just a few months ago, Sam Bankman-Fried was the most prominent proponent and (self-described) practitioner of a certain brand of effective altruism. Does Bankman-Fried's arrest on federal fraud and conspiracy charges discredit effective altruism? Should it? Let's dig in.

The term effective altruism refers broadly to the unassailable notion that in acting selflessly to benefit others, one should aim to do so effectively. For example, if you are deciding whether to make a $100 donation to either of two organizations that provide food and shelter to hungry unhoused persons, and organization A uses 100 percent of its charitable donations to provide goods and services whereas organization B uses 40 percent of donations to cover administrative costs (including high salaries for its executives), then, other things being equal, you should give your money to A rather than B. That "other things being equal" is important, however, because even with its much higher overhead, it's possible that B will do more good with the net $60 you give it than A will do with the net $100. And of course, your real choice is not between A and B but among all of the possible uses to which your $100 can be put, not to mention the possibility of giving more (or less) money. Proponents of effective altruism offer guidelines for making these sorts of decisions.

Philosopher Peter Singer's 2016 book The Most Good You Can Do offers a useful primer in effective altruism. With respect to the question where to give, Singer makes a powerful case that donations to such non-profits as museums and universities (gulp!) do less good than donations to effective organizations that combat hunger and disease in the developing world. I leave to readers interested in the effective altruism movement as a general matter the question of how successful Singer's argument is. I'll say for myself that I had a similar reaction to The Most Good You Can Do as I have had to Singer's landmark book Animal Liberation. With respect to both humans (the objects of the good Singer assumes you want to do as an effective altruist) and non-human animals, I find Singer's writing elegant, and I end up in more or less the same place as Singer does, but in each instance I get there by a substantially different route because Singer is a utilitarian whereas I am not.

Aside: After a colloquium Professor Singer hosted at Princeton on my book with Sherry Colb, Beating Hearts: Abortion and Animal Rights, Singer gave us a gift of The Most Good You Can Do, which led me to wonder whether that was really the most good he could do with that copy of the book; we could have borrowed a copy from the library and Singer could have sold the copy he gave us to earn some money to donate to an effective charitable organization. Even so, I'm glad he gifted us the book, both because I think very highly of Singer and because one of the two copies owned by the Cornell library system is checked out and the other was lost. I consulted my personal copy to write today's post. 

That's a lengthy and self-indulgent introduction to my preliminary conclusion: nothing Bankman-Fried is accused of doing remotely calls into question the general notion that one ought to be thoughtful about charitable giving, with respect to both the causes and organizations one supports. But Bankman-Fried's saga does potentially call into question one strategy promoted by some versions of effective altruism: earning to give.

Tales of Professional Incompetence, and an Effort to Explain Them

by Neil H. Buchanan

A friend of mine once said: "It's amazing that anything works.  Most planes don't crash and most buildings stay up, even though people are pretty much f*ckwits."  In some fields -- most obviously politics -- one can tell a very plausible story as to why the outright idiots (Marjorie Taylor Green, Louie Gohmert, Jim Jordan, et al.) and what we might call the idiot poseurs (Ted Cruz, John Neely Kennedy, Josh Hawley, et al.) begin to dominate a game played on a field defined by gerrymandering and voter suppression and their combined impact on party primaries.

In most fields, however, one need not believe in an all-knowing Invisible Hand to imagine that somehow the more competent people will generally rise to the top.  Yes, there will be nepotism (Trump's kids) and family money buying credentials (Jared Kushner's acceptance into Harvard), but the post-World War II professionalization of the professions (yes, I meant to be redundantly redundant) has created something that ought to bear a not-too-forced resemblance to a meritocracy.  Market forces ought to drive the worst people out of business, one might hope, and maybe some of the merely mediocre people as well, if we are truly lucky.

Even so, I recently noticed that I have unintentionally been collecting a series of anecdotes of professional incompetence in both the legal and financial fields.  Importantly, the guilty parties are not in any danger of going out of business, and indeed are in some cases considered to be the leaders of their packs.

Stipulating that data is not the plural form of anecdote -- but also understanding that anecdotes can point us in interesting directions -- I will share here a few among many examples of what I have recently observed or have heard from trusted sources.  I will then offer my gloss on a theory that my colleague and friend Sarah Lawsky (a professor and associate dean at Northwestern's law school) articulated in a recent conversation.  Bottom line: There are different types of incompetence, and the most interesting type can easily pass for competence most of the time.

Constitutional Law Exam 2022: Even the Federalism Question Invokes the Culture War

 by Michael C. Dorf

A couple of weeks ago I described the challenge I faced writing a constitutional law exam in light of the recent (claimed) turn to history by the SCOTUS. I don't know whether I rose to the challenge, but I did write an exam. And while I grade my students' answers, you, dear reader, can try your hand at it.

Note: Q1 is based on a case currently in the New York courts. Assume Myrontana is a state of the U.S.

The Year Originalism Became a Four-Letter Word

 By Eric Segall

The Justices are done hearing cases until January so it is time to take stock in what has been a  monumentally important year at the Supreme Court. There's a lot to talk about but this post focuses on one significant point: this was the year originalism became a four-letter word. 

In June of this year, the Supreme Court of the United States issued four landmark decisions, all decided by 6-3 partisan votes. The Justices returned the issue of abortion to the states (and potentially Congress), dramatically enlarged gun rights, and weaponized the free exercise clause to require Maine to support parents of children in religious schools and to forbid a school district to punish a public-school football coach who on several occasions prayed at the fifty-yard line while he was still responsible for his students. All four Justices who identify as originalists joined (or authored) each decision, including Justice Alito, who used to mock originalism but now seems to embrace it.

The first two decisions canvassed history while the third and fourth barely mentioned the topic. None of the decisions, however, was originalist.

In October of this year, during the oral arguments in the Court’s two affirmative action cases it will decide this term, the so-called originalists seemed barely interested in the original meaning of the Constitution, and it is likely the June decision will barely mention it. Similarly, in December, there was not a single question about the first amendment’s original meaning in a huge case involving a wedding web designer’s refusal to sell those services to same-sex couples.

The Justices say they are originalists, but they simply are not. They should stop trying to deceive the public.

Is Trump's Diminished Position Perversely Bad for Democracy?

by Neil H. Buchanan

Shortly after the midterm elections, I wrote two complementary columns (one on Verdict, the other here on Dorf on Law) in which I argued that the prospects for the survival of American constitutional democracy had improved in several undeniable ways, even as the remaining avenues for a successful Republican effort to create a one-party autocratic state are distressingly undiminished.

I then argued that Donald Trump continued to be the potential Republican presidential nominee in 2024 who most clearly could destroy democracy, precisely because he is the most likely to lose the election but then induce Republicans to exploit those remaining avenues -- one of which is a strategy called violence -- to overturn the results and install Trump as president.

Even though I argued that avoiding that result would not save democracy for long, it was still important to say that Trump was the biggest danger, especially in the immediate term.  In turn, that would mean that an increased likelihood of any other Republican being nominated -- no matter how bad their views on policy matters -- would be good news.  Right?  Maybe, but maybe not.

So Much Wasted Time in the Independent State Legislature Oral Argument

by Michael C. Dorf

The oral argument yesterday in Moore v. Harper lasted nearly three hours and yet various Justices seemed to be in so much of a rush--or simply wanted to interrupt the advocates before they finished answering the Justices' questions--that there was no time to make some important points, even as a great deal of time was spent on issues that aren't presented.

Let's start with the biggest time waster. David Thompson, arguing on behalf of the North Carolina legislature, conceded for the sake of argument that the North Carolina Supreme Court gave North Carolina statutes and the North Carolina Constitution a permissible interpretation, regardless of what standard SCOTUS uses in these cases to review a state court's application of state law--whether the completely deferential test federal courts routinely apply pursuant to the Erie doctrine or the somewhat less deferential (but still deferential) test articulated by Chief Justice Rehnquist for himself and Justices Scalia and Thomas in their Bush v. Gore concurrence. The argument Thompson made was that the Elections Clause of Article I, Sec. 4 precludes state courts from invalidating any state legislation governing congressional elections on the basis of a state constitution's substantive provision--regardless of whether the state court interpreted the state constitutional provision correctly, permissibly, or otherwise.

Thus, as each of the three advocates for the other side (a trio of past and present US Solicitors General) pointed out at one point or another, Moore presents no occasion for the Court to say whether it's adopting the Bush v. Gore concurrence's approach or some other approach to deciding how deferential to be in reviewing state court interpretations of state law (whether an interpretation of a statute or a constitutional provision). Nonetheless, a whole lot of attention was paid to that question, including pointless diversions by Neal Katyal (arguing for the private respondents) and Justice Alito.

I'll start with Katyal, then say a few words about Alito. I'll then note some other objections to the substance of what was said. And then I'll add some criticisms of the Justices for what struck me as arguably rude behavior before coming to what should have been the central focus of the argument if so much time hadn't been wasted.

If Older White Voters Want to Go Against Their Own Interests, Why Stop Them? Let Me Count the Ways

by Neil H. Buchanan

What's the matter with Kansas so much of the United States?  One of the enduring questions posed by the last few decades of Republican extremism is why so many people vote against their own interests in favor of the party of plutocrats.

Thomas Frank turned himself from merely an excellent journalist into a brand name with his 2004 instant phenomenon: What's the Matter with Kansas?  What happened to the prairie populism that sent people from Kansas and other lightly populated states -- like Senators Frank Church of Idaho, Dick Clark of Iowa, Tom Daschle of South Dakota, and other center-left types in the second half of the Twentieth Century -- to serve in Congress?  Democrats used to be very competitive there, and although Kansas itself surprised everyone this year with a resounding defeat of an anti-abortion constitutional referendum in August and the reelection of their Democratic governor over a Trumpist Republican in November, the middle of the country still is dominated by White people -- especially old White people -- who repeatedly send far-right Republicans to Washington and their state capitals.

Explaining why that has happened is far too big a task for a single column, so here I want to offer a short analysis addressing a related question: Why not just say, “F*ck ‘em!”?

Some Culture War Moments in the 303 Creative Oral Argument

 by Michael C. Dorf

Here on the blog last week, both Professor Segall (on Friday) and I (on Thursday) acknowledged that 303 Creative v. Ellenis--which pits a web designer's free speech against same-sex couples' statutory right against discrimination--presents some difficult questions. Yesterday's two hours and twenty minutes of oral argument in the case did little to make it much easier, even though some Justices (especially Alito, Gorsuch, and Kavanaugh) characterized the disagreement between the sides as fairly narrow. In a Verdict column tomorrow, I'll explore the costs and benefits of various ways in which the Court can try to decide the case without either gutting anti-discrimination law or effectively eliminating a right of expressive businesses to refuse to create works they deem odious.

In today's essay, I'll address a few side points raised during the argument, beginning with the not-so-subtle signaling by the web designer's lawyer--Kristen Waggoner, the CEO of Alliance Defending Freedom, an organization that litigates on behalf of conservative churches and religious organizations--where she stands in the culture wars.

Cognitive Bias, Rationality, and the Cost of a Ride on Lyft

by Neil H. Buchanan

Having written at length over the last few months about the looming political disasters that face us, I will use today's column to talk about something far less consequential, yet still (I hope) interesting.  The broad question for the day is how human psychological quirks are used in social and economic analysis.  The narrow question is why Lyft does not (seem to) have an option for non-a la carte purchases.  Is it possible, I ask with an almost-straight face, that "the market" is not completely efficient?  Gasp!

Of Free Speech, Non-Discrimination, and the Futility of Originalism

 By Eric Segall

Next week the Court will hear oral argument in 303 Creative LLC  v. Elenis. This controversy involves a wedding website designer who does not want to extend her services to same-sex weddings despite a Colorado law requiring her to do so. The case is a hard one because it pits important principles against each other: the right of the people to free expression against the state's interest in non-discrimination. Mike wrote a thoughtful piece about the case yesterday. 

The point I want to emphasize about this case is how useless originalism is to its resolution and that no one should pretend otherwise. To illustrate this futility, I will focus on an amicus brief (in support of the Court hearing the case) written by a number of all-star first amendment and originalist scholars including Michael McConnell, Richard Epstein, Mark Scarberry, Larry Alexander, Robert George, Steven Smith, and numerous other constitutional law heavyweights. If they can't show the relevance of originalism to this case, it is likely no one can. And, as shown below, they cannot.

A Selective Preview of the SCOTUS Oral Argument in 303 Creative v Ellenis (Web Designer Claiming Free Speech Right Not to Promote Same-Sex Weddings)

 by Michael C. Dorf

Next week the Supreme Court will hear oral argument in 303 Creative v Ellenis, which poses the question that the Court ducked in the Masterpiece Cakeshop case in 2017: whether the application of a public accommodations law to a business owner who provides expressive goods or services violates the business owner's right to free speech where the goods or services convey a message of celebration of or support for same-sex marriage and the business owner opposes same-sex marriage? In Masterpiece Cakeshop the Court ducked the issue by deciding the case on the ground that members of the Colorado Civil Rights Commission expressed religious bias (a dubious interpretation of the record, in my view). Although 303 Creative also comes from Colorado, and although the plaintiff's certiorari petition sought review on issues of both religious liberty and free speech, the Court took the case to consider only the free speech issue. It's possible that the Court might avoid the issue again, this time on standing or ripeness grounds, but more likely we will get a ruling on the issue the Court ducked in Masterpiece Cakeshop.

Needless to say, with this reactionary Court, I'm not optimistic. The U.S. Court of Appeals for the Tenth Circuit ruled against the web designer plaintiff. I doubt that SCOTUS granted review simply to pat the Tenth Circuit on the back for a job well done. So while I hope Colorado wins this case, I expect Colorado to lose. Even so, it matters how Colorado loses almost as much as whether the state wins or loses. As I explained in a Verdict column after the oral argument but before the SCOTUS judgment in Masterpiece Cakeshop, a robust free speech right to resist public accommodations laws could fatally undermine anti-discrimination law.

In the balance of today's essay, I'll elaborate on a distinction I offered in that column. I'll also make some further observations about 303 Creative. And I'll write next week's Verdict column on whatever happens during the oral argument.