Friday, December 30, 2022

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.

Thursday, December 29, 2022

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.

Wednesday, December 28, 2022

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.

Tuesday, December 27, 2022

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?

Monday, December 26, 2022

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!

Friday, December 23, 2022

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.

Thursday, December 22, 2022

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]

Wednesday, December 21, 2022

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.

Tuesday, December 20, 2022

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.

Monday, December 19, 2022

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.

Friday, December 16, 2022

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.

Thursday, December 15, 2022

(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.

Wednesday, December 14, 2022

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.

Tuesday, December 13, 2022

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.

Monday, December 12, 2022

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.

Friday, December 09, 2022

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.

Thursday, December 08, 2022

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.

Wednesday, December 07, 2022

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!”?

Tuesday, December 06, 2022

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.

Monday, December 05, 2022

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!

Friday, December 02, 2022

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.

Thursday, December 01, 2022

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.

Wednesday, November 30, 2022

The Justices and the Absence of a Binding Ethics Code: More Reasons Why the Court is not a Court

By Eric Segall

For over thirty years, I have had numerous personal and professional relationships with state court and lower federal court judges. The vast majority of them take their ethical responsibilities seriously, especially when it comes to accepting gifts from people with interests before them and deciding whom they may socialize with if they fear people may be seeking to influence them. Various state and federal ethics codes bind these judges, but in my experience, most judges simply think it is part of the judicial role to avoid, what virtually all judicial ethics codes call the "appearance of impropriety." That standard is codified in the Official Code of Conduct rules applying to "United States circuit judges, district judges, Court of International Trade judges, Court of Federal Claims judges, bankruptcy judges, and magistrate judges." The federal judges not covered by this Code are, of course, the Justices of the United States Supreme Court.

Canon Two of the Official Code of Conduct says the following:

Canon 2: A Judge Should Avoid Impropriety and the Appearance of Impropriety in all Activities

(A) Respect for Law. A judge should respect and comply with the law and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.

(B) Outside Influence. A judge should not allow family, social, political, financial, or other relationships to influence judicial conduct or judgment. A judge should neither lend the prestige of the judicial office to advance the private interests of the judge or others nor convey or permit others to convey the impression that they are in a special position to influence the judge....

Again, it has been my experience that most judges abide by these rules not just because they have to but because a vital part of a judge's responsibilities is to avoid any public perception that they are beholden to special or private interests. Now let's talk about the Supreme Court of the United States.

Tuesday, November 29, 2022

The Pageantry of Casual Racism

by Neil H. Buchanan

This past weekend was the big rivalry week in American college football.  As in the past, I find myself unable to break the emotional hold that this corrupt and ugly game has on me, so I watched and watched and watched.  Whereas in the recent past I would be tempted to write yet another column defending amateurism and pointing out that scholarship athletes have never been "unpaid," however, the situation has now gotten so completely out of hand that there is no point.  This is bad all the way down.

So rather than discuss the fact that showering money on college players -- so openly that one "color commentator" spent several minutes during a game on Friday giving a star player unsolicited advice to  hold out for $7 million in "name, image, and likeness rights" from his university, to stop him from going to the NFL -- has not in any way fixed the deeply corrupt system (big surprise), I will focus on a different kind of ugliness.

Monday, November 28, 2022

The Challenge of Writing a Constitutional Law Exam in a History-Centric Regime

 by Michael C. Dorf

In a Verdict column last month, I decried the recent turn to history in SCOTUS cases involving unenumerated rights, firearms, and the Establishment Clause. I contended that, in these particular subject matter areas and as a general matter: history standing alone is too under-determinate to adjudicate contemporary constitutional controversies; therefore it will be used (as it was in recent cases) chiefly as a mask for decisions reached on ideological grounds; and unless the Justices are prepared to overrule just about all of their precedents, they will need some means of deciding when a case presents a novel question to be decided under the history-only rubric versus when a case presents a sufficiently interstitial question to call for the application of older precedents that are preserved per stare decisis.

The turn to history presents a further problem that I raise here only partly tongue-in-cheek. It poses a serious challenge to those of us who teach constitutional law: how to write a good exam question?

Wednesday, November 23, 2022

Is a Patently False Statement Necessarily a "Lie"? (A Thanksgiving Classic From Sherry Colb)

[N.B. The following blog post first appeared on the day before Thanksgiving, 2014. We'll be back with new content on Monday.]

by Sherry F. Colb

In my Verdict column for this week, I discuss the case of Warger v. Shauers.  Warger involves Federal Rule of Evidence 606(b), which prohibits, among other things, the introduction of juror testimony in an effort to undermine the validity of a verdict.  The petitioner, Gregory P. Warger, wants to introduce a juror's testimony about a fellow juror's comment during deliberations, not as itself an error affecting the verdict but instead as evidence that the latter juror materially lied during voire dire and should never have been seated on the jury.  In my column, I consider whether the petitioner's distinction -- between prohibited juror testimony about a fellow juror's improper statements during deliberations and permissible juror testimony about a fellow juror's disclosure during deliberations of lies during voire dire -- is tenable.

In this post, I want to explore the meaning of a deliberate "lie."  In Warger, the petitioner claims that one of the jurors lied during voire dire about her impartiality and ability to award damages if the plaintiff satisfied his burden of proof.  We know that she lied, argues the petitioner, because the juror revealed during deliberations that if her daughter had been sued for the accident for which she -- the daughter -- was responsible, the lawsuit would have destroyed the daughter's life.  The petitioner's inference is that this statement -- about the juror's feelings about the lawsuit -- demonstrated the falsity of the juror's claim of impartiality and willingness to award damages if appropriate.  Had the juror said during voire dire, "I am biased against plaintiffs because a plaintiff could have ruined my daughter's life," then the juror would have been successfully challenged for cause and accordingly precluded from serving on the jury.

Though there is room for quibbling, I am prepared to concede to the petitioner that the juror's statements about her daughter are logically inconsistent with her prior claim to be unbiased.  Does this mean, however, that the juror was necessarily lying?  Was her claim of objectivity comparable to a claim she was childless, even though she in fact has a daughter, as revealed by her comment during deliberations?  I think not.

Tuesday, November 22, 2022

The Impossibility of Principled Originalism

 By Eric Segall

Last week on this blog, Mike talked about how the leadership of the Federalist Society asked its co-founder Professor Steven Calabresi to not identify himself in that way when advocating certain legal positions concerning the so-called independent state legislature doctrine the Court is going to address later this term. In his final paragraph, Mike wrote the following:

The Fed Soc website proclaims the 'duty of the judiciary to say what the law is, not what it should be.' Evidently, it also includes an implicit exception: unless what the law is doesn't align with the ideological druthers or institutional interests of the Republican Party; then it's the duty of the judiciary to pretend the law is what we wish it were.

Of course, we all know that the Federalist Society leadership is not interested in real judicial engagement with text and history but with political results they favor. But what about the judiciary and the legal academy? Is it possible to be a principled originalist? The answer, given today's strong culture of judicial supremacy, is simply no.

Monday, November 21, 2022

Two Oddities in the Respect for Marriage Act

by Michael C. Dorf

Last week, the Respect for Marriage Act (RMA) cleared the very substantial hurdle of a Senate cloture vote. Its passage now seems assured. Even if some of the Republican Senators who voted for cloture don't vote for the bill itself, it will surely garner majority support in the chamber. It will then go back to the House to vote on the amended version, and then to President Biden for signing.

Is that a big deal? As I explain in my latest Verdict column, in the short run the RMA doesn't do anything, because the SCOTUS ruling in Obergefell v. Hodges protects same-sex marriage as a constitutional right. But as I also explain in the column, there is at least some reason to fear that the SCOTUS conservative super-majority might overrule Obergefell. I don't think that's likely, mainly on legal realist grounds; however, I don't find the reassurances that Justice Alito offered in Dobbs v. Jackson Women's Health very reassuring.

My Verdict column describes what the RMA does: (1) repeals the Defense of Marriage Act; (2) forbids states from refusing to recognize interracial and same-sex marriages from other states; (3) provides that federal law will treat as married people who are married under state law; and (4) in the version that's pending in the Senate though not the original House version, exempts religious non-profits from any obligation to provide goods or services to celebrate weddings they disapprove on religious grounds.

The key language in the RMA forbids state actors from denying recognition "to a marriage between 2 individuals, on the basis of the sex, race, ethnicity, or nation origin of those individuals." The federal definition provision (in the version pending in the Senate) also contains the "2 individuals" proviso (twice). In the balance of this essay, I want to discuss two oddities of that language: (A) the use of the word "sex" to somewhat obliquely invoke same-sex marriage; and (B) its rejection of plural marriage via the use of "2."

Friday, November 18, 2022

Joan Didion's Blank Notebooks, Eleanor Roosevelt's Andirons, and the Appeal of Tangible Artifacts

by Michael C. Dorf

Until a couple of weeks ago, I hadn't much ventured into the literature of grief, mostly because I wasn't sure I could handle it yet. But I knew what would be first on my list: Joan Didion's The Year of Magical Thinking. Didion was a wonderful writer whose ironic yet realistic sensibility I deeply appreciate, so I took the plunge. The book--which recounts the year after her husband (author John Gregory Dunne) died of a sudden heart attack--spoke to me.

The Year of Magical Thinking takes its title from a number of episodes, most centrally Didion's inability to give away her late husband's shoes because he would need his shoes if he were to come back to life. I know exactly how she felt. It's not that you believe your dead husband or wife will return. It's not even  denial as a stage of grief. It's more a kind of disorientation. You see the familiar objects and they bring to mind their departed owner, which reminds you they're gone, which surprises you, because you didn't think you had forgotten. Indeed, much of The Year of Magical Thinking involves Didion finding herself in familiar places and remembering long-ago incidents, noting how sometimes, but not often, these flights of fancy take her away for a few minutes from consciously thinking about her husband's absence or, in the memoir's other tragic plot line, her daughter's grave illness.

Yet if Didion's attachment to her late husband's shoes makes perfect sense, what are we to make of the value perfect strangers place on Didion's own belongings, including ephemera seemingly wholly lacking in sentimental value? This week her estate held an auction. As Danielle Cohen observes at The Cut:

Two sets of blank (blank!) notebooks went for $11,000 each. A stained pair of leather trash baskets were auctioned off for $5,500. One lucky (?) soul coughed up $7,000 for the collection of beach trash that once sat on Didion’s mantel.

Admittedly, the proceeds go to charity, and I suppose that the purchasers of these items could thus rationalize that they were doing good, but it remains a mystery why they wanted these items at all. Instead of paying $11,000 for a blank notebook once owned by Joan Didion, why not donate $10,985 to charity and buy a copy of The Year of Magical Thinking for $15. If you already have a copy (and what Didion fan willing to spend $11,000 for random memorabilia doesn't own all her books?), you can give this new copy as a gift.

Thursday, November 17, 2022

Blaming the Victims in America's Crisis of Democracy

by Neil H. Buchanan

There might not be much more to say about the 2022 midterm elections, although I do believe that the most important fact about our current situation -- that Democrats lost the House because of gerrymandering, full stop -- has been almost completely missed by the usual suspects.

In any case, now that everyone is turning their attention to 2024, it is somewhat surprising that there was an almost ho-hum attitude in the press about Donald Trump's official confirmation of the obvious: that he is running for president again.  I knew that he had been hyping an official announcement on Tuesday, but I was not near a screen during his speech, and when I opened the apps for the The New York Times and The Washington Post at about 11am on Wednesday morning, reports on Trump's event were something like ten or twelve stories down the page.

That does not mean that people will continue to ignore Trump, and it definitely does not mean that someone else will be the Republican nominee in 2024.  Even so, this was indeed a surprise -- and a pleasant one at that, especially in light of my Verdict and Dorf on Law columns yesterday arguing that any not-Trump Republican nominee is less likely to end US democracy than Trump is.  (Not unlikely, just less likely.)

With 2022 out of the way, then, attention should turn to whether the rule of law in the United States will survive past 2024.  Things are off to a bad start, however, given that the editorial board of The Times (as I noted yesterday) has already decided to pretend that dangerous Republican presidential aspirants are non-dangerous and "have demonstrated a commitment to the rule of law and an ability to govern."  There is evidently no bottom to the well of studied obliviousness from which the respectable press draws.

In any event, I want to make this column relatively short, focusing on two particularly galling arguments from the non-Trump right that blame Democrats for "putting democracy on the ballot."

Wednesday, November 16, 2022

The Least Likely Candidate to Win (Trump) Is the Most Likely to End Democracy, But Any Republican Could Do It

by Neil H. Buchanan 

"When the facts change, I change my mind - what do you do, sir?"  Even though John Maynard Keynes might not have uttered that sentence, it is a memorable and pithy way to say that we should be open to updating our beliefs if new evidence or arguments arise.  Fair enough.  And having quoted myself (accurately) dozens of times arguing that the United States is a "dead democracy walking," last week's midterm results offer an important opportunity to look anew at this country's political mess.

After reassessing the situation, I sadly conclude that we are still almost certainly f*cked, but whereas I previously said that I merely hoped that a way out might emerge, I am now revising my assessment to say that there might finally be realistic, non-wishful reasons to believe that the country and the world could be spared an American descent into fascism.  Again, the worst outcome still seems very likely, but certainly less so than it did eight days ago.

Let us count the ways that things have changed and not changed.

Tuesday, November 15, 2022

Justice Thomas Goes Silent Again--At Least For One Election Denier's Case

by Michael C. Dorf

Scorning the tendency of some Republican appointees to succumb to what was once called the "Greenhouse effect,"--whereby they proved more moderate than expected or even liberal--Justice Clarence Thomas famously told his law clerks, "I ain't evolving." The quip captured two related sentiments: first, that Thomas was a committed conservative rather than a wobbly one or a closet liberal; and second, that he was unconcerned about what elite coastal liberals thought. The Greenhouse effect was after all, based on the hypothesis that the likes of Sandra Day O'Connor and Anthony Kennedy cared what Linda Greenhouse wrote about them in The New York Times.

Both sentiments expressed by Justice Thomas were well justified and have proven true over time. Today's essay will focus on the second point, harnessing evidence from an order the Court issued yesterday in Ward v. Thompson.

In that order, the Court, without opinion, denied an application for a stay and an injunction presented by Kelli Ward, the chair of the Arizona Republican Party, one-time fake elector for Donald Trump, and the object of a subpoena from the January 6 Committee for phone records. (The subpoena went to her mobile phone carrier, but she sought to block compliance.) For more background on the substance of the dispute, I recommend Amy Howe's explainer on SCOTUSblog.

Monday, November 14, 2022

Federalist Society Tries to Cancel its Co-Founder

by Michael C. Dorf

In a few weeks, the Supreme Court will hear argument in Moore v. Harper, which presents the Justices with their first opportunity to give plenary consideration to the independent state legislature (ISL) theory, according to which state legislatures can make and change laws governing congressional and presidential elections, independent of their state constitutions, state courts, and in the most aggressive version of ISL, of the governor. ISL is ahistorical and a potentially grave threat to democracy. Even as many Republicans grow weary of Donald Trump--not, mind you, because he is a lying, cheating, racist, sexist, evil man, but because he is bad for their political brand--Trump and Trumpism remain a very real threat to the continued existence of American democracy. His expected announcement tomorrow night of a third presidential run underscores the threat. Should SCOTUS endorse ISL in Moore v. Harper, Trump will have a path back to power that does not depend on his winning the Electoral College as it has traditionally acted, much less winning the national popular vote.

But this is not an essay about ISL, Moore v. Harper, or Trump, at least not directly. Rather, today I want to talk a little bit about what happened after a scholar with impeccable conservative legal credentials joined a brief disputing ISL and otherwise disagreeing with the orthodoxy on issues that the Federalist Society definitely does not insist upon.

Friday, November 11, 2022

That the Democrats Came Close Does Not Change Anything

by Neil H. Buchanan

So, you say there were some elections in the United States earlier this week?  How did that go?  As I wrote here on Election Day, we knew that tens of millions of people would vote for Republicans who are in the process of trying to turn America into a one-party state, while tens of millions of others (roughly half of all registered voters, it turned out) would not show up to vote against the party of insurrection.  That was an easy prediction, and it was accurate.

Most observers also made what they thought was an easy prediction, which was that Democrats would be wiped out in this election cycle.  They were wrong.  The post-election group-navel-gazing has almost entirely involved marveling at how relatively well the Democrats did, with grand pronouncements from the usual pompous asses that "the fever is breaking" amid discussion that maybe American democracy is not in as much danger as we thought.

Sadly, that is nonsense.  I agree with Professor Dorf's analysis on Wednesday that there is nothing meaningful or helpful about the Democrats covering the spread.  Or, to change the gaming metaphor, there is no "second-place money" in a winner-take-all pot.

I will have more to say about that below, but I will take a moment first to advertise my new two-part Verdict column, "Political Violence in the United States."  In today's second part of that column, I note with some gratitude that the worst-case scenarios of widespread violence in this year's elections has not played out.  There is still time for that to go sideways, but violence avoided is violence avoided, and that is good as long as it lasts.

Here, I want to explain a bit more why I agree with Professor Dorf's conclusion that this was still a terrible week for the country (and the world), and I will add some thoughts about how it all happened.

Thursday, November 10, 2022

SCOTUS Ponders Indian Tribes, Foreign Nations, Race-Based Classifications, and Vegans

 by Michael C. Dorf

Yesterday the Supreme Court heard oral argument in Haaland v. Brackeen and various consolidated cases. They collectively present constitutional challenges to the Indian Child Welfare Act (ICWA), a federal statute that in various respects supersedes state family law regarding foster care placements and adoptions of children who are members of federally recognized Indian tribes. Three main constitutional issues are presented: whether (1) ICWA falls within the scope of Congress's so-called plenary power over relations with and regarding Indian tribes; (2) whether the obligations that ICWA places on state and local child welfare agencies constitute unconstitutional commandeering of the state; and (3) whether ICWA obligates state courts (and/or other state actors) to use a suspect racial classification, thus triggering (and failing) strict scrutiny. In addition, there are threshold questions of standing, especially with respect to the state of Texas, which is the petitioner in one of the consolidated cases.

In today's essay, I'll focus chiefly on the third question, and in particular on an issue that seemed especially important to Justices Kavanaugh and Barrett during the oral argument: what to make of the "third preference" of a key provision of ICWAA declaratory provision of ICWA states that in addition to protecting the integrity of Indian tribes, ICWA's substantive requirements aim "to protect the best interests of Indian children." Nonetheless, no one disputes that where ICWA applies, it partially displaces the "best interests of the child" tests that state family courts routinely apply in cases that do not implicate ICWA. The key provision states the following adoption placement preferences:

In any adoptive placement of an Indian child under State law, a preference shall be given, in the absence of good cause to the contrary, to a placement with (1) a member of the child’s extended family; (2) other members of the Indian child’s tribe; or (3) other Indian families.

Justices Kavanaugh, Barrett, and others were especially concerned about preference (3) because it seems inconsistent with the argument advanced by the federal government (through Deputy SG Ed Kneedler) and tribal parties (through attorney Ian Gershengorn) that ICWA employs a permissible political classification, not an impermissible racial classification. After all, while membership in a Sioux tribe can be analogized to citizenship in a foreign country, the third preference treats membership in any Indian tribe as the basis for an adoption preference with respect to any other Indian tribe rather than to non-Indian adoptive parents. The analogy to foreign sovereigns seems to break down if adoptive parents who are members of, say, the Navajo Nation in Arizona are given priority over a non-Indian couple in Florida with respect to the adoption of a child who is a member of the Seminole Tribe of Florida.

Wednesday, November 09, 2022

Maybe Democracy Was The Friends We Made Along The Way

by Michael C. Dorf

As I hit publish this morning, we do not know the full results of the voting that ended yesterday. However, it appears likely that, even though Republicans substantially underperformed relative to expectations, they will end up gaining control of the House of Representatives by a modest margin. As of the early morning on November 9, the NY Times Needle gave Republicans an 83% chance of winning the House.

If Republicans can flip seats in two of the remaining too-close-to-call Senate races, they will gain control of the Senate as well. At this point, Arizona, Nevada, and Georgia look like the battlegrounds for this 2-out-of-3-wins contest. In the event that Senate control turns on the outcome of what now looks very likely to be a Georgia runoff (again!), we on the blog will discuss that race in the coming month (presumably including coverage by our in-house Atlanta-based Prof Segall).

What are the takeaways? I'll leave the fate of election deniers in state races for another day. For now, let's talk about Congress.

Tuesday, November 08, 2022

It's Election Day: What in the World Are People Thinking?

by Neil H. Buchanan

My duties at the University of Florida include being the law school's Director of Global Scholarly Initiatives, which requires that I spend each Fall semester researching in a foreign country.  This Fall's home base has been Vienna, where there was a national election last month.  That election was completely unremarkable by 21st Century standards, with the Austrian neo-fascist right (the local version of Marine Le Pen's bloc in France) losing in a landslide to the center-left (former Green Party) president.  Election Day was barely noticeable, and other than very standard campaign posters (head shots of candidates above short slogans), one would not have known from walking around the city that anything was happening.

And then there is the United States.  Via the interwebs, I have been staying on top of the situation in my home country, where the situation looks quite grim.  I will write a column soon about political violence (and the likelihood thereof) in the US, but here I want to focus not on what might happen because of these midterms but on the mindset of people who are not voting against Republican candidates in today's elections.

To be clear, "not voting against Republican candidates" can mean either not voting for Democrats or not voting at all, which in turn means that there are at least two types of thought processes involved: (1) "I affirmatively choose to vote for this Republican," and (2) "I'm not going to bother voting."  In some contexts, that difference would matter quite a lot, because of course people can have only one or a small number of reasons to actively vote for Republicans but many reasons to be passive.

Here, however, I think that there is a surprising convergence between those two choices, because the stakes in this election are obviously so high -- and because President Biden and the Democrats have been very clear about what those stakes are.  When they have said that "democracy is on the ballot" or warned of a "path to chaos," they have been refreshingly blunt, and it becomes much more difficult to see how people can say, "meh, whatever," while choosing not to vote.  That non-vote seems more active and less passive.

In any case, I do think it is important to think about what might be going through people's minds when they have every reason to know that Republican success in these elections will lead quickly and inexorably toward high-impact disasters.  What are people thinking?  Or, to put the point more clearly: What are people thinking?

Monday, November 07, 2022

Should District Judges Appoint Historians as Neutral Experts? The Legislative Fact Problem

by Michael C. Dorf

Here on the blog last week, Professor Segall's critique of originalism referred to a recent order issued by U.S. District Judge Carlton W. Reeves in a case presenting the question whether the federal proscription of possession of firearms by felons unconstitutionally infringes the Second Amendment. Judge Reeves asked the parties to address the question whether to appoint a historian as a "consulting expert" to provide objective evidence.

Arguably Judge Reeves was simply trolling the Supreme Court. Consider that his explanation for why he felt ill-equipped to perform the historical analysis demanded by Justice Thomas's majority opinion in NYS Rifle & Pistol v. Bruen relied chiefly on Justice Breyer's dissent in that case. Judge Reeves pointedly added that judges "are not experts in what white, wealthy, and male property owners thought about firearms regulation in 1791." Zing!

Whether or not Judge Reeves was just trolling Justice Thomas, his question raises an important issue that the Supreme Court has, so far as I can tell, never resolved: how to resolve questions of what lawyers call "legislative fact." In today's post, I'll sketch the problem and discuss a solution proposed in the leading scholarly treatment of it--a 2016 article by NYU Law Professor Kenji Yoshino in the William & Mary Law Review.

Thursday, November 03, 2022

Originalism as Dangerous Nonsense

 By Eric Segall

In my 2018 book Originalism as Faith, after canvassing numerous different and often conflicting forms of originalism, I argued that many originalists hold on to the idea that text and history should be used by judges to resolve hard constitutional cases because they could not accept the realist critique that the Supreme Court's decisions are ideology or values all the way down. I also suggested that on the ground originalism did very little work in generating decisions by courts and that the theory was mostly an after-the-fact rationalization for decisions made on other grounds. 

With the addition of three alleged originalists to the Supreme Court and a host of so-called originalists on the lower courts, we have now seen much more originalism in action that we saw prior to 2018. The pinnacle of this movement came last June in New York Pistol & Rifle Ass'n. v. Bruen, in which the conservatives signed an opinion by Justice Thomas instructing courts to undertake a comprehensive review of history to determine if Second Amendment restrictions are “consistent with the Nation’s historical tradition of firearm regulation.” The Bruen Court made clear that judges should not take into account policy concerns when reviewing the constitutionality of gun legislation. 

Tuesday, November 01, 2022

If Only the Democrats' Internal Debate About Focusing on Social or Economic Issues Were Interesting or Useful

by Neil H. Buchanan

One of the most predictable debates in any campaign season pits the Democrats who want to focus almost exclusively (or even entirely) on so-called kitchen table issues against those who want to spend some amount of time talking about social issues that are purportedly non-economic.

Careful readers of the previous sentence surely noticed that although I called this debate predictable, I described it in a relatively unusual way.  First, the Democrats who express concern about social issues do not -- and never have -- been absolutists about their side of the debate.  People who want to talk about racism, sexism, and other such issues have always been willing to say that of course standard economic issues are important and must be considered, asking only for some consideration of issues that affect marginalized groups (groups that add up to more than half of the population, even when only gender is considered).  Meanwhile, those on the other side of the Democratic debate are at best only grudgingly willing to say that it is OK to talk about non-economic issues in very limited circumstances, and as little as possible.

Second, in describing social issues as "purportedly non-economic," I am trying to remind everyone -- primarily myself, to be honest -- that the consequences of our ongoing problems with racism, sexism, and similar matters very much include dollars-and-sense outcomes for marginalized groups.  Yesterday's Supreme Court argument about affirmative action is higher education is one obvious example, but we need only consider the perverse combination of Republicans' insistence on women (including poor women) carrying fetuses to term but then refusing to help those new mothers with the costs of rearing children.

I want to be clear, then, that the framing that we usually see in the press -- progressives want to talk about social issues, but others want to talk about family budgets -- is both inaccurate and damaging.  Moreover, it is damaging in a predictably anti-progressive direction, as it allows supposedly "realistic" pundits and reporters to make it seem that social issues are mere special interests that distract from a winning campaign formula and alienate mythical swing voters.

After describing a nuance about the Democrats' never-ending internal debate (which the press loves to stoke), I will note an aspect of the debate that seems to contradict my progressive presumptions.  Exploring that issue will highlight what is truly at stake when we talk about social pathologies that harm people in very different ways.

Donor, Legacy, and Athlete Preferences in Higher Education Admissions: Art Museum and Squash Edition

 by Michael C. Dorf

During the oral arguments in the University of North Carolina and Harvard affirmative action cases, various of the conservative Justices pushed the programs' defenders on what race-neutral steps the colleges had been taking to achieve greater student-body diversity (in particular to boost enrollment of African American, Latinx, and Native American students). These Justices appeared to accept the argument by the lawyers for Students for Fair Admissions (SFA) that the Constitution and Title VI contain a kind of exhaustion requirement: before colleges may use race as a plus-factor in admissions, they must exhaust race-neutral means of achieving racial diversity.

Much of the discussion on this point focused on admissions preferences for varsity athletes (A), legacies (L), children of large donors (D), and children of current university faculty and staff (C), collectively abbreviated as ALDC preferences. The record with respect to ALDC preferences was stronger for SFA in the Harvard case than in the UNC case, so I'll focus on Harvard. In so doing, however, I should note that the record is hardly strong for ALDC, even in the Harvard case. Defending Harvard, attorney Seth Waxman noted that simply eliminating affirmative action would lead African American enrollment at Harvard to decline from 14 to 6 percent, while also eliminating ALDC preferences would lead to a further decline to 5 percent. So the attack on ALDCs looks like a non sequitur.

Monday, October 31, 2022

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.