Friday, May 20, 2022

The Electoral-Industrial Complex and Shiny Distractions

by Neil H. Buchanan
 
This has been one of the more active weeks of the 2022 midterm election season, with primaries held in key states and pundits reading the tea leaves and offering hot takes on what it all means.  Will Trump's endorsed candidates win?  Mostly yes, but not for any reasons that add up to a lesson of any significance.  Are insurrectionists and election deniers doing well?  Again yes, because that is the reality of Republican politics this year.  I guess it would be biggish news if the craziest of the crazies were losing in significant numbers, but mostly there is not much interesting happening.

Even so, there are people who are both professionally obligated and clearly personally invested in making this all seem breathlessly important.  Unlike so many things in American life in the 21st Century, that is very much an all-sides-do-it phenomenon.  Almost completely empty horse-race coverage dominates American political discourse, but the deeper problem is that the people who spend their time talking about it have every incentive to pretend that what is truly happening is not happening.  What is happening?
 

Thursday, May 19, 2022

In Vitro Fertilization and Dobbs

by Sherry F. Colb

As readers know, I have spent the last few weeks identifying the many ugly features of Justice Alito's (SA's) draft opinion in Dobbs v. Jackson Women’s Health Org, and there is much left to identify. But I want to turn in this post to a topic that has not received much airtime either in the Dobbs opinion or among those worried about the impact of the decision approving laws that force women to remain pregnant and give birth against their will. That topic is in vitro fertilization. The Court seemed to ignore it, and with some notable exceptions (like Senator Tammy Duckworth), public debate has mostly focused on other issues.

Yet the decision in Dobbs virtually guarantees the government's authority to prohibit IVF.  After explaining why I draw that inference, I will offer my account of why neither SA nor the rest of the Court is interested in enabling those who would prohibit IVF.

Wednesday, May 18, 2022

As a Matter of First Impression, Should Free Speech Protect the Right to Protest at Homes?

 by Michael C. Dorf

My latest Verdict column addresses the legal and strategic questions surrounding protests outside the homes of justices, judges, and other public officials. While recognizing the utter hypocrisy of the likes of insurrectionist-adjacent Josh Hawley calling for peaceful protesters to be prosecuted and that the issue could distract from the much larger looming disaster for American women as SCOTUS prepares to overrule the right to abortion, I nonetheless regard the questions as somewhat difficult. Here I want to step back a bit and consider the free speech question without the overhang of existing constitutional doctrine--especially the 1988 SCOTUS ruling in Frisby v. Schultz.

As I note in the column, Frisby found that the public have a right to peaceful protest in residential neighborhoods but not to engage in "targeted picketing"--i.e., protesting at length in front of any particular home. Is that the right line? Let's start from scratch.

Tuesday, May 17, 2022

Rational Basis Scrutiny?

by Sherry F. Colb

In his lengthy draft opinion overruling Roe v. Wade and Planned Parenthood v. Casey, Justice Samuel Alito (SA) does a number of things that add insult to injury. I have accordingly criticized SA's opinion here, here, here, and here, rather than just saying "Alito is a misogynist creep who turned back the clock a half century" and calling it a day. In this post, I will focus on the slap in women's faces that SA achieves by ruling that prohibitions against abortion trigger "rational basis" scrutiny.

Rational Basis

The first thing to note is that every law, however innocuous, must survive rational basis scrutiny if challenged under the Fourteenth Amendment Due Process Clause (as well as the Equal Protection Clause). A law, for instance, that requires drivers to signal before a lane change would, if challenged, have to undergo rational basis scrutiny (RBS). RBS, in turn, demands that the law at issue serve some legitimate purpose. Many have characterized RBS as toothless because only a ridiculous law that does not, even hypothetically, promote a legitimate objective fails RBS. Strict scrutiny, by contrast, demands that the actual purpose of a law (not just a hypothetical goal) promotes a compelling governmental interest and does so in a way that is narrowly tailored to the compelling interest and therefore neither over-inclusive nor under-inclusive with respect to that purpose. Limits directed at the freedom of speech and the right to marry must survive strict scrutiny, which most laws fail to satisfy.

Monday, May 16, 2022

A Few Very Hard Questions About Religion and the Court

By Eric Segall

A number of years ago I sat on a long plane ride next to an orthodox Jewish man. We struck up a conversation and found out that we each had three children. I have three daughters while he told me he had two daughters and a son. When I told him I was a law professor, he told me with delight that both of his sons had expressed some interest in going to law school. I asked him about his daughter and he said that she would, of course, be a wife and mother and take care of the home. I expressed surprise at this (naive I know), and asked him what his teen daughter thought about these differing expectations based on gender. The man said that she didn't have a choice but in any event his daughter was quite comfortable with this life plan. I asked him if I could speak freely and he kindly responded in the affirmative. I asked him how he could possibly justify limiting his daughter this way especially in light of how proud he sounded about his sons wanting to be lawyers. His response was that this is the way they live, it works, and he saw no need to alter this lifestyle for his daughter.

Here is my question: if this man were nominated to be a federal judge, should his views on gender disqualify him from the position?

Before turning to that question, let's agree on one thing. A federal judicial nominee who in a confirmation hearing testified that he did not think women should be CEO's, Senators, lawyers, or bankers because their proper place is in the home and that we would all be better off with more precise gender roles would not be confirmed. 

Does the calculus change if the nominee testifies exactly the same way but says his views are based on sincere religious faith?

Hold that question.

Friday, May 13, 2022

Justice Aborted

 by Sherry F. Colb

Justice Samuel Alito (SA) has given us commentators a lot to criticize in the days following the leak of his draft opinion overturning Roe v. Wade and Planned Parenthood v. Casey. In this post, I want to focus on a phrase he uses in the draft: "aborted fetuses." Because the Movement for Forced-Pregnancy-and-Birth has regularly used this phrase (along with the meaningless propaganda term "abortion on demand"), it might sound like a proper usage, but I would contend that it is not. We abort a process that has just begun or that is in progress. We do not "abort" the endpoint of the process. To say "aborted fetuses" is to pretend that there is no process.

So what? you might ask. The Court is approving of reproductive servitude for women, including victims of rape and incest, and I am nitpicking about phraseology? I will now explain why the phrase that SA uses matters a lot.

Thursday, May 12, 2022

Normality and Increasing Awfulness -- Why Post-Roe Politics Will Not Save Democracy

by Neil H. Buchanan

Even the most casual reader of Dorf on Law is, I suspect, immediately struck by the pessimism infusing much of what we publish here.  The other day, I received an email from Professor Dorf under the subject line: "Our blog posts -- in cartoon form," providing a link to the latest from the indispensable satirist Tom Tomorrow.  Mr. Tomorrow (?) is capable of capturing in only six cartoon panels what a gifted writer would need at least six thousand words to convey (and that I would eventually cover in 15,000 words).

Misery loves company, and it is oddly heartening to see others who are as pessimistic as I am.  Maybe that says something about me, but in any case, I have lately been trying to think -- on (what I hope is) a deeper level -- about the sources of our well founded pessimism.  That is, much of my writing over the last several years has been a matter of describing the political mechanics that are in the process of killing our constitutional democracy.  But those mechanical processes have existed for a long time and are ultimately run by people.  The people who run them, however, are doing so in increasingly corrupt and shameless ways.  Why the change?
 
People tend to talk about "the new normal" of American politics, which allows us to contrast the current situation with the shattered norms of the past.  We also need to think about what has caused so many people not to care or even seem to notice that everything is different.  Unlike most of our conversations about this country's politics, this is truly a situation in which both parties are to blame -- but in very different ways.

Wednesday, May 11, 2022

The Aftermath of Carpenter v. United States

By Matthew Tokson

I recently wrote an article, "The Aftermath of Carpenter: An Empirical Study of Fourth Amendment Law, 2018-2021," forthcoming in the Harvard Law Review. The article looks at the state of Fourth Amendment law following the Supreme Court’s groundbreaking 2018 opinion in Carpenter v. United States. It analyzes hundreds of recent Fourth Amendment cases and identifies the factors that drive modern search decisions. It describes an emerging “Carpenter Test” that determines when the Fourth Amendment applies to government actions.

Essentially, this test looks to (1) the revealing nature of the data collected by the government, (2) the amount of data collected, and (3) whether a person has voluntarily disclosed their information to a third party. While other considerations sometimes arise, these three are the most influential and commonly used factors in modern Fourth Amendment decisions. They drive case outcomes in hundreds of frontier cases.

More broadly, courts have largely embraced Carpenter and its analysis, with almost no overt criticism and relatively little misapplication. The law is still developing, but Carpenter appears to be workable in the lower courts. That said, the aftermath of Carpenter highlights the surprisingly common phenomenon of “indirect noncompliance,” where courts intentionally misinterpret controlling precedent in order to reach a preferred outcome. A small percentage of post-Carpenter cases involve courts applying a strong version of a doctrine that Carpenter curtailed. These opinions may represent a small pocket of indirect resistance towards Carpenter. Yet judicial inertia towards a prior status quo is a common phenomenon following a major legal change, and its occurrence here is not too surprising. Judges confronting an unfamiliar new standard that raises decision costs and increases uncertainty are likely to favor the prior doctrine—at least until they grow more comfortable with the new one.  This effect has been observed in areas including criminal sentencing, patent remedies, copyright fair use, qualified immunity law, and many more.

Why "Pro-Life" Advocates Love Late-Term Abortions

 by Sherry F. Colb

Inspired by Justice Samuel Alito's (SA's) leaked opinion, I thought a lot about different kinds of abortions. Some, including medical abortions, take place very early in pregnancy. Others happen far later along. For Americans who do not take their position on abortion from religious doctrine, a late abortion is morally fraught in a way that an early abortion is not. Why? Because as a pregnancy progresses, the zygote, a simple one-celled organism like a paramecium, and a morula and blastula, clumps of undifferentiated tissue, grow into what increasingly looks like and acts like the baby it would eventually become. When the self-styled "pro-life" community march around with posters of allegedly aborted fetuses, you rarely see a picture of a zygote, blastula, or morula because no one sane would empathize with this reproductive tissue. Early abortions do not make for good copy. Indeed, an early abortion could look very much like a menstrual period.

So the "pro-life" folks need late abortions and photos (allegedly) of them to draw out a sense of empathy and outrage for the supposed "victims" of abortion. And what could be more upsetting for the viewer than seeing a metal instrument enter the uterus and tear a fully formed apparent baby limb from limb, followed by the crushing of that seeming baby's skull?

If all abortions took place very early in pregnancy, then the posters that urge forcible pregnancy and birth would have to either picture some cells (snore) or lie about what happens during an abortion. I would not ordinarily assume that a group of people is lying about their favorite topic except that I already know that they do. I recently watched Unplanned, a film that supposedly presented the truth about abortion. It involves a woman who worked at an abortion clinic but then saw what abortion really involved and switched sides on the issue. The lie? The overarching theme of the movie (which is absorbing if dishonest) was that the abortion clinic tries to pressure women who are unsure about whether to terminate into having the abortion so that the clinic can rake in the big bucks. In fact abortion providers often give women financial aid if they cannot afford to pay and almost any non-abortion medical practice will produce more profit and without risking the lives of the practitioners (because you never can tell when someone who is "pro-life" will decide to kill people who disagree with them). The big lie was the idea that people perform abortions for the great financial rewards. No one who does this work is in it for the cash. So if they lie about their adversaries' motives, then I cannot assume that they would tell the truth about early abortions.

Tuesday, May 10, 2022

Good Capitalists versus Vindictive Republicans

by Neil H. Buchanan 
 
"Sen. Scott calls for Biden to resign over inflation."  It is a cliche to say that something "made me laugh out loud," but wow.  Had anyone been nearby when I came across that Washington Post headline this morning, they would have been startled, to say the least.  That Rick Scott is one of my home state's US senators made the bitter humor even more pungent.

Scott, the former governor of Florida and admitted Medicare fraudster, is now spending his time in Washington pushing a Contract on America-like wish list of regressive policy proposals that his leader Mitch McConnell is trying to ignore until after the midterms.  That he views himself as qualified to speak about economic policy is amusing in and of itself, but the detachment from reality that has him calling for the President of the United States to resign because of relatively high inflation is beyond deranged.  At this point in his presidency, Ronald Reagan had presided over much more inflation than Joe Biden has, but sure, Biden should resign!

This small story, which does not even qualify for the news cycle equivalent of fifteen minutes of fame, offers as good an opportunity as any to talk once again about the Republican Party's war on capitalism.  Strap in.

Monday, May 09, 2022

In Defense of Enclaves

{N.B. This is a guest post by Antonio Haynes, discussing his love of Fire Island Pines.  He was prompted to respond to this article that appears in the New York Times.}

Antonio here. I am the other black man whose photograph the Gray Lady featured in Zach Stafford’s tendentious and self-indulgent recounting of his experience in Fire Island Pines. The narrative was peculiar to me because it was written by a black man who, by his own account, was a stranger to Fire Island. While I do not own property on the Island, I am a black gay man (effeminate, sometimes) who has not missed a summer there for more than a decade.  It is the only place on Earth where I am comfortable being all of myself. 

In every imaginable sense, Fire Island is a beautiful, inclusive place. Summer 2011 was the first time I ever lived in New York. As unknowledgeable and as unsophisticated as I may have been, all I knew is that I wanted to go to Fire Island.  To get there, I depended on my instincts, the kindness of strangers (often white), and my ability to figure it out.

Why Did SCOTUS Unanimously Find a Constitutional Right to Fly a Christian Flag on a City Hall Flagpole?

 by Michael C. Dorf

Today I'll talk about a case that the Supreme Court officially released last week. A unanimous Court, in an opinion by Justice Breyer, held that because Boston permitted secular groups to fly their flags on one of the three flagpoles in front of City Hall during permitted events, it also was required to permit a Christian group to fly its flag. The decision in Shurtleff v. Boston is arguably narrow. The U.S. Court of Appeals for the First Circuit had ruled for Boston on the ground that the display of a flag on City Hall grounds is government speech, and the government as speaker has much greater leeway to choose among messages it wishes to promote than it has as regulator of private speech. The bulk of Justice Breyer's opinion for the Court (in Part II) addresses this "basic question" of whether the government or the private group speaks by flying the flag. It concludes that the private group is the speaker.

However, that's not all that the opinion does. It also rejects the proposition that allowing the flying of the Christian flag (on a pole that is the same height as and adjacent to the poles flying U.S. flag and the Massachusetts flag) would violate the Establishment Clause. It then quickly proceeds to rely on the Court's free speech cases holding that government may not discriminate against religious speech to rule against the city.

In today's essay, I take issue with Justice Breyer's opinion in two ways: (1) The Court continues to treat government speech and private speech as though these are completely separate categories, rather than recognizing an intermediate category of mixed speech; and (2) the Court treats the federal First Amendment's Establishment Clause as the only legitimate source of church-state separation norms, thereby continuing the repudiation of an important principle--traceable to Chief Justice Rehnquist--that there is "play in the joints" between the two Religion Clauses of the First Amendment.

Friday, May 06, 2022

Why Is the Anti-Roe Draft Opinion Not Even More Brazen?

by Neil H. Buchanan
 
Roe v. Wade appears to be doomed, and it is important not to lose track of what is happening right before our eyes.  The loss of abortion rights is the loss of abortion rights.  There are other important parts to the story, but even without those other things to worry about, the stakes could not be higher.
 
As Professor Colb noted in her insightful column yesterday -- brilliantly titled "All Hail Justice Coathanger" -- we must remember that the Supreme Court's theocrats are set to empower governments at all levels in this country to harness the coercive powers of the state to force vulnerable people to become unwilling incubators.  As she put it: "It is difficult to imagine a more sex-based 'fuck you' than announcing that the government may lawfully force a woman (or a trans man or a nonbinary person) to go through all that pregnancy, labor, birth, and lactation involve."

Some people will die as a result, others will become grievously ill, and many poor and middle-class victims will be financially devastated.  And that is to say nothing of the emotional damage to the people who will be forced to make terrifying no-win choices about how to proceed in the Republicans' brave new world.
 
And, lest we forget, prosecutorial discretion all but guarantees that the targets of zealous criminal charges will be people of color and relatively poor people. Imagine being, for example, nonbinary and Black, faced with an unwanted pregnancy. Your life is hardly cushy to begin with, but while others might still be able to get away to a state where abortion is legal (for now), you know that there are people in law enforcement who would love to make an example of you. Life just became much more dangerous.

Also, there are the doctors, nurses, and the friends who try to help, all of whom might be charged with murder.  We must remind ourselves that this is no longer an abstraction.

Thursday, May 05, 2022

All Hail Justice Coathanger

 by Sherry F. Colb

Many observers have already said wise things about the emesis issuing forth from Samuel Alito (SA) in the leaked draft majority opinion in Dobbs v. Jackson Women's Health Organization that has exposed the Supreme Court as the illegitimate institution that it has now become. I want to take this opportunity to propose, as an initial observation, that SA wears his hypocrisy on his sleeve.

In one part of what reads like an application for the Federalist Society Hall of Fame, SA makes quick work of dismissing the idea that banning abortion (including for rape and incest victims) denies equality to women on the basis of sex. Before quoting his discussion of this idea, I will briefly make the argument that he so cavalierly dismisses.

The argument is that for the most part, women's role in reproduction is far more demanding, physically and psychologically, than men's. Specifically, men ejaculate and thereby complete their role. Women, by contrast, endure forty weeks of some combination of nausea and vomiting, difficulty sleeping, difficulty breathing, the risk of gestational diabetes, the risk of life-threatening pre-eclampsia, the potential need to experience bed rest (which is anything but restful), the most physically painful experiences at the end, including the risk of vaginal tearing and of more serious complications, followed by the production of milk that can sometimes cause very painful mammary gland blockage (if she misses a feeding or pumping) and risks of an abscess.

Criminally prohibiting abortion means that when men ejaculate inside women (which some number do without the consent of the women involved), the law launches women into an extraordinarily burdensome experience and thus creates an extremely unequal state of affairs. Only those with a vagina and a uterus face the enormous and sometimes life-threatening burdens and risks of pregnancy and birth. It is difficult to imagine a more sex-based "fuck you" than announcing that the government may lawfully force a woman (or a trans man or a nonbinary person) to go through all that pregnancy, labor, birth, and lactation involve.

Wednesday, May 04, 2022

Deeply Rooted in Mystery and Suspicion: A Further Thought on Alito's Effort to Distinguish Other Unenumerated Rights

 by Michael C. Dorf

Part II of Justice Alito's leaked draft opinion in the Dobbs case argues at length that there is no constitutional right to abortion because such a right is not deeply rooted in history and tradition. Much of the argument is tendentious law office history, but there is a further problem. Many of the cases protecting other unenumerated rights would also fail this test if applied at the level of specificity that Justice Alito would apply it. For that reason, in my Verdict column yesterday I suggested that such other rights could be in jeopardy. I focused especially on the LGBTQ+ cases. Here's how I explained why Justice Alito's reassurances that the case only overturns abortion rights are not very reassuring:

[The Alito draft] first notes that Roe and Casey relied on prior cases recognizing such rights as the right to marry, to direct the education of one’s children, and to avoid unconsented surgery. It then also notes that the plaintiffs and the United States as amicus had connected the abortion right to the right of consenting adults to engage in same-sex sexual conduct (recognized in Lawrence v. Texas in 2003) and the right of same-sex couples to marry (recognized in Obergefell v. Hodges in 2015). Notably, however, the Alito draft then goes on to distinguish “the abortion right from the rights recognized in the cases on which Roe and Casey rely.” Crucially, Roe and Casey do not rely on Lawrence or Obergefell, as both of those rulings post-date Roe and Casey. The not-so-subtle implication is that the Court stands prepared to overrule Lawrence and Obergefell.

To be sure, the general language that precedes the seeming carve-out of Lawrence and Obergefell would appear to distinguish those cases from abortion as well. The supposedly crucial distinction to which the draft points is this: "Abortion destroys what [Roe and Casey] call 'potential life' and what the law at issue in this case regards as the life of an 'unborn human being.'” If I were arguing a future case in which the Court were asked to overrule Obergefell or Lawrence, I would surely emphasize that unlike abortion, the right to marry or have consensual sex with a person of the same sex causes no harm to third parties. For now, however, I want to point out how awkwardly this attempted distinction fits with a basic premise of the draft opinion.

Tuesday, May 03, 2022

A Few Brief Reflections on the Leak

 By Eric Segall

The Supreme Court has confirmed that the draft opinion overturning Roe v. Wade and Planned Parenthood v. Casey is authentic but, like all drafts, might change before it is final. Below are a few observations.

If the final opinion is substantially the same as the draft one, the tone is egregious and full of hubris. Reasonable people can disagree about whether the right to abortion should be protected by the Supreme Court. But the dismissive rhetoric by Justice Samuel Alito of the reasoning in both Roe and Casey is unnecessary and hateful. There are ways to write an opinion overturning those landmark cases that are sensitive to both sides. The draft is definitely not such an opinion and, if the tone remains, will further incense the left and increase polarization on this difficult issue. The opinion reads more like a Scalia dissent or an inflammatory argument of a media pundit than a Supreme Court opinion dealing with the most difficult of topics.

By referring to “unborn human beings” and using similar rhetoric, the Court may well be laying the groundwork for future courts to strike down abortion protections in blue states. That result would be a calamity beyond imagination.

The draft opinion's discussion of the history of abortion law in America does not accurately reflect our country's real struggles with this issue. Abortions before quickening were not illegal in America as a general matter before the mid-19th century. So much for serious originalism (no surprise).

Mask Mandate Munsingwear Mootness Mystery

 by Michael C. Dorf

[Note to readers: Last night Politico published a leaked draft of a Supreme Court opinion overturning the right to abortion. I'll undoubtedly have something to say about the substance and perhaps about the leak too. But for now, I'll stick to my regularly scheduled programming.] 

Last week, Adam White of the American Enterprise Institute and I were the featured guests on the National Constitution Center's We the People podcast, hosted by NCC President/CEO (and GW law professor) Jeff Rosen. We discussed Judge Mizelle's ruling invalidating the CDC mask mandate for travelers on planes, trains, and other forms of transit. White arguably agreed with my main line of criticism of the ruling--set forth in my Verdict column--as insufficiently deferential to the CDC in construing the scope of its statutory authority. (I say "arguably" because White said he thought the ruling not clearly right but also not clearly wrong.) We more squarely disagreed on the aspects of the ruling that held the CDC had violated the Administrative Procedure Act (APA) by failing to provide an adequate explanation for dispensing with notice-and-comment rulemaking or for the substance of the rule itself. Once again echoing points I made in my column, I found the objections unpersuasive, whereas White thought they were valid. Finally, we discussed the justifications Judge Mizelle offered for issuing a nationwide injunction and some broader implications.

Early in the podcast I noted the oddity that although the Biden administration has appealed Judge Mizelle's ruling, it has not sought a stay pending appeal. I speculated that the decision might reflect a political judgment. On one hand, the mask mandate is not especially popular now and, if not extended, would have expired on its own within a couple of weeks of Judge Mizelle's ruling, so it's understandable that the administration did not seek a stay, only to re-impose the mandate for a brief period. At the same time, however, Judge Mizelle's very narrow construction of the CDC's authority could limit its ability to fight further waves of COVID-19 or take other measures in response to future disease outbreaks, so appealing could make sense to preserve flexible authority.

Yet, as I noted during the podcast and in my column, the appeal itself is risky, because the Eleventh Circuit and/or the Supreme Court could end up affirming the reasoning of Judge Mizelle's ruling, thereby undermining rather than strengthening the CDC's authority. After all, a federal district court decision sets no binding precedent for future cases involving different parties, but federal appeals court and Supreme Court rulings do. So why did the Biden administration run the risk of an appeal that could backfire?

Monday, May 02, 2022

Of John McGinnis, Adrian Vermeule, Originalist Fallacies, and the Common Good

 By Eric Segall

Last week on the Law & Liberty blog, Professor John McGinnis, a well-known academic originalist and libertarian, reviewed Professor Adrian Vermeule's new book "Common Good Constitutionalism." Vermeule's anti-originalist writings have been upsetting originalists for some time now and for good reason. His critiques of originalism are as persuasive and compelling as his program for what he deems to be the "common good" is disturbing. But we can learn a lot about the fallacies of originalism through a serious examination of McGinnis's futile attempts to critique Vermeule's book.

McGinnis begins by saying Vermeule's attacks on originalism are unlikely to succeed because "the originalist project it challenges has too much momentum to be derailed. The Supreme Court has a majority of originalist justices, and a considerable majority of the small band of legal academic conservatives are originalists."

The Supreme Court does have a majority of Justices who self-identify as originalists but that is simply not the same as saying they decide cases like originalists. The examples of anti-originalist behavior on the Court could fill a book but here are a few key ones:

Friday, April 29, 2022

Endorsement, Coercion, and the Nature of Legal Tests

by Michael C. Dorf

Constitutional law is replete with tests that are not literally found in the text of the constitutional provisions the tests implement. For example, time, place, and manner restrictions on speech on government property that is a public forum are permissible so long as they are content-neutral and leave open adequate alternative opportunities for speech. Race-based classifications by government are impermissible unless they are the least restrictive means of advancing a compelling governmental interest. Police investigative activity constitutes a search within the meaning of the Fourth Amendment if it violates a reasonable expectation of privacy.

None of the italicized phrases in the foregoing paragraph appears in the relevant constitutional text. And while conservative scholars and jurists sometimes complain (selectively) about courts reading into the Constitution concepts that its text does not contain, they routinely apply existing tests and often formulate new ones. Tests that go beyond the literal text of the Constitution are essential to, in the words of Professor Richard Fallon, implement the Constitution.

Why are there so many constitutional tests that go far beyond the literal language of the text? Partly because the U.S. Constitution is short, but also because life is complicated. Given enough time and cases, even a constitution that partook of the prolixity of a legal code would generate numerous tests.

Because tests play such an important role in U.S. constitutional law, the most hotly contested issues often play out as fights over tests. Should race-based affirmative action programs have to meet strict scrutiny or merely intermediate scrutiny? Should infringements on firearms possession be measured by strict scrutiny, intermediate scrutiny, or a direct examination of text and history? Etc.

And yet, tests may be less important than meets the eye, for at least three reasons.

Thursday, April 28, 2022

What Is Still Worth Fighting For? How About People's Dignity?

by Neil H. Buchanan
 
In a recent Dorf on Law column, I offered a parenthetical observation at the end of the opening paragraph: "Ah, remember those halcyon days when people who tried to be sensitive to non-Christians' sensibilities were accused of waging a War on Christmas -- instead of today's preference on the right to attack non-conservatives as pedophiles?!"  Oddly enough, the topic of that column was tax policy, but it is in fact fitting that it somehow made sense to make a sarcastic remark about culture-war tropes even while writing about such a mundane topic.  The Republicans' grievance machine is working overtime, and it is flooding even unexpected corners of our existence with hate.

Even in the best of times in this country, it was not outright shocking when right-wingers would insult people on the left with weird personal attacks.  "Why do you hate America?" was their response to critics of the Iraq invasion in 2003, for example.  In my first semester as an untenured professor at George Washington University, I was giving a faculty seminar about fiscal policy, and a colleague (whom I had not yet met) asked me if I was in favor of the estate tax.  When I said yes, he said, "Oh, so 'from those who have the ability to those who have the need,' I guess?"  I laughed and said, "Well, I've been red-baited before, and I probably will be again."  To his credit, my colleague later came to my office and apologized (happily, not an "if you were offended" non-apology).

My point is that people criticize and attack each other all the time, and we always have, but even the outrageous stuff is now categorically different.  Questioning someone's patriotism because of a disagreement over justifications for military action, or calling them a Marxist/communist/socialist/poopyhead because they think (as Adam Smith put it) that "[t]here is no point more difficult to account for than the right we conceive men to have to dispose of their goods after death," is cheap and demeans the discourse.  But what we see now is so much worse.
 
Here, I will very briefly offer some thoughts on what individuals might do even as their country slides into one-party dictatorship and as the attacks from the increasingly unhinged non-majority insurrectionists become ever more personal.  In contrast to my writing about what it will be like to live in a post-democratic world in the sense of how our day-to-day lives and jobs might change, here I want to think about what matters even while the fight has become unwinnable, and after it is lost.
 

Wednesday, April 27, 2022

Contradictory Statutory Commands: "Remain in Mexico" Edition

 by Michael C. Dorf

Much of yesterday's oral argument in Biden v. Texas focused on statutory meaning. To oversimplify somewhat so I can get to my main point for today's post:

(1) A statutory provision tells the federal government that undocumented immigrants seeking asylum "shall be detained;"

(2) but Congress has never appropriated nearly enough money to pay for the cost of detaining all but a relatively small fraction of such asylum seekers;

(3) not withstanding the detention obligation, the same statutory provision states that the Attorney General "may return" asylum seekers to a contiguous country (i.e., Mexico or Canada) from which they entered, although of course the government cannot do that without the contiguous country's agreement;

(4) yet another statutory provision authorizes the Secretary of the Department of Homeland Security "in his discretion" to "parole" otherwise not-yet-admitted undocumented immigrants (including asylum seekers) "into the United States temporarily under such conditions as he may prescribe only on a case-by-case basis for urgent humanitarian reasons or significant public benefit."

The core issue in the case (apart from the procedural challenge to the Biden Administration's effort to change the policy) is how to fit these provisions together. (There's another provision involving bail, but it plays a minor role, so I'll ignore it for present purposes.) Texas, which prevailed in the lower courts, says that the baseline obligation is to detain asylum seekers; because the government cannot (given its funding levels) comply, it must use the alternatives; the case-by-case nature of parole makes that available for only a small number of asylum seekers, so the vast majority must be returned to a contiguous country--here, Mexico--pursuant to the policy dubbed "remain in Mexico."

The federal government argues that if this reading is correct, then every administration since the laws went into effect has been violating them, which is implausible. The federal government says that it does provide case-by-case review of each undocumented immigrant it paroles, so that is permissible, and also argues that the approach of the lower court and Texas would convert statutory discretion--"may" send to a contiguous country--into a mandate.

For what it's worth, I find the Solicitor General's argument persuasive. But for now, I want to ask what the Court should do if it finds neither side persuasive. In other words, what should the Court do if the various statutes Congress has enacted--including the under-funding laws--are simply incompatible?

Tuesday, April 26, 2022

'Doing Ideas': The Attack on Intellectual Freedom Takes a Weird Turn

by Neil H. Buchanan

The increasingly intense Republican efforts to energize their angriest voters with nonstop culture-war battles is truly a national effort.  Even so, because Republicans' power is currently limited to the state level, the action is happening in statehouses rather than in Washington, DC.  With hundreds of state-level Republicans -- those now in office as much as those who are trying to win party primaries -- trying to prove who is the Trumpiest of them all, one might imagine that it would be difficult to identify an epicenter of the most intense activity.

Please forgive me for this groan-inducing play on words, but there is an epicenter, and it is the home of Epcot Center.  (That was almost as bad as Maureen Dowd's typical column.  I am truly ashamed.)  Despite occasional efforts by Texas Republicans to take the lead, Florida is where the most extreme action is.  There is so much going on here that it is nearly impossible to keep up.  Today, however, I will focus on a recent effort by my state's governor to turn up the heat on my "industry": higher education.  It is both hilarious and scary.

Monday, April 25, 2022

The Roberts Court and the Erasing of the Establishment Clause

 By Eric Segall

The first amendment provides that the government may make no law "respecting an establishment of religion or prohibiting the free exercise thereof." Not too long ago, the Supreme Court took both parts of the religion clauses of the first amendment seriously. The Court, however, has now decided to breach the wall of separation between church and state by effectively reading the establishment clause out of the Constitution and by re-interpreting the free exercise clause to not only bar discrimination or punishment of religion by the government but also by forbidding states from relying on establishment clause concerns to justify keeping government and religion separate. The result is a theocratic Supreme Court imposing its strong religious beliefs on both the states and the American people. These dramatic changes have occurred not because of any change in constitutional text or new historical insights but because the Justices' values have changed. 

Not too long ago, the Justices restricted the types of aid that could be given to private religious schools by the government, limited the types of religious symbols that could be placed on governmental property, and forbade teacher-led prayers in public school classrooms, high school graduation ceremonies and football games. The Court has effectively given up policing the first two classes of cases and this week showed every indication that it is on its way to abandoning the third as well. This erasure of the establishment clause is coming as the Court is beefing up the free exercise clause so that it acts as a powerful trump card against important and secular governmental interests. The real-world effect of these lines of cases is to convert the first amendment from a constitutional provision protecting religious neutrality and freedom into a clause protecting religious supremacy. 

Don't Say Mickey: Crony Capitalism and the First Amendment

 by Michael C. Dorf

In a recent blog post, Professor Eugene Volokh considers the question whether Florida's imminent withdrawal of the very substantial legal benefits it had bestowed on the Disney Corporation--in obvious retaliation for Disney's opposition to Florida's "Don't Say Gay" legislation--violates the First Amendment. Although Professor Volokh's views overall could be fairly called center-right (with a strong libertarian streak) while mine could be called center-left, we often agree and sometimes work together (e.g., here) on free speech issues.

I find Professor Volokh's post characteristically thoughtful and balanced. He first sets out the precedents and principles that might lead one to conclude that Florida will violate Disney's free speech rights if, as seems likely, it revokes Disney's various privileges and breaks. Employee speech cases are most apt here. As a Justice of the Massachusetts Supreme Judicial Court, Oliver Wendell Holmes, Jr. famously wrote that a man "may have a constitutional right to talk politics, but he has no constitutional right to be a policeman." That view--that the greater power to deny someone a government job includes the lesser power to condition employment on the relinquishment of free speech rights--is not the current state of the law. Rather, modern case law recognizes that government employees have a right to speak on matters of public concern, except that if the speech is in the course of official duties, the government may limit that speech where it has an interest that goes beyond the (illegitimate) interest it has in limiting the speech of citizens who are not government employees.

After acknowledging the force of the government employee speech precedents, Professor Volokh suggests two grounds for concluding that Florida's impending actions relating to Disney might be different. First, he observes that, as opposed to the run-of-the-mill government employee, "officials exercising political power are generally not protected from retaliation by other political figures, at least when the retaliation consists of benefits conferred by the other political figures in the first place." The extraordinary powers that Florida has invested in Disney include those ordinarily reserved for government entities.

Second, Professor Volokh notes that Florida would be withdrawing special benefits from Disney that go well beyond "the sorts of contracts (there, for trash disposal) that pretty much any company could bid for," so that "withdrawing th[e company's "extraordinary"] status would simply put Disney in the same position as other companies in that geographical area, and the bulk of other companies in Florida."

Although Professor Volokh does not offer a bottom-line conclusion one way or the other about whether withdrawal of Disney's special status would be constitutional, I read him as tentatively leaning towards a conclusion that the withdrawal would be valid. Accordingly, I want to push back a little on the two lines of argument mentioned above to explain why I lean tentatively in the other direction--towards concluding that what Florida proposes to do is unconstitutional.

Friday, April 22, 2022

Ten Questions for Adrian Vermeule or How Scary is Common Good Constitutionalism?

By Eric Segall

A few weeks ago on this blog, I wrote a mini-review of Professor Adrian Vermeule's new book "Common Good Constitutionalism." At the outset, I stated my strong disagreements with Vermeule on important questions of women's and LGBTQ equality but also observed that his critiques of originalism, formalism, and right-wing attacks on the administrative state were thorough, smart, and extremely persuasive. I received pushback from many folks on the left terrified of Vermeule's alleged religious extremism but thought most of his work is for academics and little of it will actually matter on the ground anyway. 

I was probably wrong.

I engaged in a debate last Thursday on Originalism sponsored by the University of Cincinnati Student Federalist Society and the Cincinnati Lawyers Federalist Society Chapter. My sparring partner was a seasoned and extremely smart litigator, and the moderator was Judge John Bush of the Sixth Circuit, who had suggested we talk about Vermeule's work during the debate. I skeptically asked both the Judge and the lawyer if they thought common good constitutionalism had any valence or relevance for the students and lawyers in attendance. They both were adamant that it had. Additionally, over the last few weeks, I've noticed a huge uptick on social media both among academics and others talking about common good constitutionalism as well as more book reviews, essays, etc., on Vermeule's work. I also was recently invited to participate in a book group discussion among academics covering his work. 

Like I said, I was probably quite wrong about the limited reach of common good constitutionalism and my belief that Vermeule's excellent critiques of originalism and formalism can be separated from his moral and religious visions, which I find quite troubling.

Thursday, April 21, 2022

Republicans' Increasingly Anarchic Extremism Is the Mutant Spawn of Anti-Tax Zealotry

by Neil H. Buchanan

There was a time when conservatives could plausibly claim to favor law and order.  Although that was always deeply infused with racism and included a lot of nodding and winking at various types of atrocious behavior (see, for example, the excuses for privileged White males to get away with sexual assault, because "boys will be boys"), they were at least able to say with a straight face that they wanted (most) laws to be enforced and that (most) people should live by the law.

That is plainly no longer even arguably the case, but how did the change happen?  As it turns out, the area in which conservative politicians began to be openly contemptuous of law and order was taxes.  Lacking the political will to cut rich people's taxes as much as they wanted, the next best thing was to make everyone hate taxes and tax enforcers so much that there would be revulsion against the very idea of enforcing taxes.  Although Donald Trump is an extreme outlier in many ways, he was walking on a path that Republicans had cleared and paved for years when he said that not paying taxes "makes me smart."
 
If "smart" people (which actually means people with enough money to take advantage of giveaways to the rich) can legally avoid paying taxes -- which is not to deny that Trump was also breaking the law outright -- one might hope that we would want to change the law to force them to pay taxes.  We also would want to enforce the law more scrupulously.  Instead, Republicans count on the public's hatred of the Internal Revenue Service to create cover to allow the richest Americans to get away with paying nothing.

Earlier this week, I wrote a column describing how the IRS, against all odds and under very bad circumstances, has been able to set up a surprisingly smooth system for people to submit their tax forms.  Even though that is a genuine achievement, I added that this should all be unnecessary, because there is no good reason why the tax system should require even a tiny fraction of the time that ours imposes on this country's citizens.
 
Republicans affirmatively want to make the tax system frustrating and annoying, and they have been doing this for decades.  And I should add that, even after Republicans soon succeed in creating a one-party autocracy, there is no reason to think that they will make tax life easier for most citizens.

Here, I want to expand the inquiry to ask why the current system is as bad as it is.  I will conclude by connecting some dots between anti-tax zealotry and the increasing insanity across the board among Republicans.

Wednesday, April 20, 2022

Valuing Sentient Life, Not DNA

 by Sherry F. Colb

[Note to readers: The following is the text of remarks I recently made on the Think Like a Vegan podcast. If you prefer to listen rather than read, you can do so here or on the Think Like a Vegan feed on Apple podcasts, Spotify, or Stitcher.]

When I first became vegan and told people about it, I ended up hearing many surprising questions. Some of the questions came from sincere curiosity, and I think some might have come from resistance. I remember not being vegan and wanting to come up with a question that would stump vegans and lead to the conclusion that I could continue to eat animals and their reproductive secretions. Regardless of why someone was asking a question, I tried to treat both the person and her question with respect. Getting angry, annoyed, or impatient in response to questions would surely turn people off veganism. If we are having a conversation about it, then change is possible.

The question I want to talk about today is some version of the following: If you believe that animals who are less intelligent and cognitively complex than humans deserve rights, then what about human embryos and fetuses? They too might have claims of right, and does that mean that an animal rights advocate should also favor embryonic and fetal rights? I have thought a lot about this question, in part because I have been pro-choice since I was old enough to have a position on the issue. If favoring veganism and animal rights as I do meant opposing abortion, I was confused about how to handle the cognitive dissonance. Were human embryos and chickens in the same boat?

Tuesday, April 19, 2022

People Should Not Have to Waste Time on Tax Filing, But Republican Politicians Like it This Way

by Neil H. Buchanan

Yesterday, April 18, was the last day to file returns with the IRS for the 2021 tax year.  Well, not really, as I will explain below, but that is how this is generally reported in the news.  Normally, April 15 would have been the relevant date, but because that fell on Good Friday this year, the relevant decision makers decided that the US Treasury should not wage a War on Easter and thus pushed the filing date back.  (Ah, remember those halcyon days when people who tried to be sensitive to non-Christians' sensibilities were accused of waging a War on Christmas -- instead of today's preference on the right to attack non-conservatives as pedophiles?!)

There are two competing points that I want to make here about tax filing.  First, it is nowhere near as difficult as people make it out to be, with the IRS doing an amazing job of simplifying the process, against all odds.  But second, tax filing should be nowhere near as difficult as it still is -- and the reason it continues to be needlessly difficult is entirely the doing of the Republican Party, which continues to pursue its stealth-tax-cuts-for-the-rich strategy that long predates Donald Trump's time in electoral politics.

Monday, April 18, 2022

Putting the Text in Originalism: Three Odd Amendments

by Michael C. Dorf

Regular readers of this blog and/or my scholarship know that I am a longtime skeptic of constitutional originalism. I've expressed my skepticism in numerous places, but you can find a fairly concise explanation at pages 696-701 of this article in the Catholic Law Review, which reproduces remarks I delivered at a 2019 Federalist Society panel with Professors Sai Prakash and Rick Pildes, as well as Judge Thomas Hardiman and then-Judge (now-Justice) Amy Coney Barrett. Here's an even shorter version:

I regard "old" originalism, which focused on the intentions and expectations of the framers and ratifiers, as unjustifiable in principle; so do most self-described originalists. I regard "new" originalism, which focuses on the constitutional text's original public meaning, as a substantial improvement in theory but extremely under-determinate in the kinds of contested cases in which it is typically invoked, and thus ultimately unhelpful. If jurists who call themselves originalists believe that their linguistic and historical analysis plays a large role in how they decide contested cases, they are fooling themselves. Appellate and especially Supreme Court litigation has a selection bias for cases in which authoritative sources of law do not uniquely determine the outcome, making other factors--especially each judge's values and ideology--critical.

Indeed, it's not even clear to me how much thoughtful originalists really are fooling themselves. For example, during the colloquy on the panel I mentioned above, then-Judge Barrett said both in her opening remarks and in conversation with me (at p. 709) that originalism as she understands it is not designed to constrain judges and doesn't especially constrain judges, or doesn't do so to a substantially greater extent than other approaches to constitutional interpretation and construction.

I confess that if originalists think that originalism provides no further constraint than other interpretive approaches, then I don't understand what originalism is. Accordingly, I heard and read then-Judge Barrett to be saying that treating original meaning as fixed and, where determinate, dispositive, provides a bit more constraint than interpretation that proceeds without doing so. I'm not sure even that very modest claim is accurate in practice, but I agree that it could be true in principle. Historical and/or lexicographical investigations will sometimes yield a more determinate meaning than the face of the text indicates. In any event, although I'm not an originalist, I am a student of history, and even we non-originalists believe that original meaning plays an important role in constitutional interpretation.

We sometimes describe the original understanding as a useful "starting point," but that's not quite right. Surely the starting point is the constitutional text. And that leads me to my main point for the day. The courts--including self-described originalists--treat three odd-numbered constitutional amendments in ways that cast doubt on their commitment to following the text's meaning wherever it leads.

Friday, April 15, 2022

Good Riddance to Presidential Debates (Democracy Is a Goner in Any Case)

by Neil H. Buchanan

Yesterday, the Republican National Committee voted unanimously to stop working with the Commission on Presidential Debates.  This is the same committee that, less than two months ago, censured Congresspeople Liz Cheney and Adam Kinzinger, a resolution that "passed overwhelmingly on a voice vote without debate or discussion."  That resolution also infamously included the claim that the January 6 rioters were engaged in "legitimate political discourse," an outrageous assertion that the RNC's chair then tried to explain away (rather unsuccessfully).

We are not, in other words, talking about a group of political leaders who are known for putting country above party or even for being grounded in reality.  Basic decency used to be optional (albeit disadvantageous) among that group, but now it is disqualifying.  Even so, because the decision to withdraw from future presidential debates is a matter of pure political strategy rather than some larger question of right or wrong, there is in this context no reason to think that they should take anything into account beyond pure political advantage.  That, after all, is what a national committee for any party would spend most of its time doing.
 
But no matter whether that decision is good or bad for future Republican candidates, maybe I am wrong that this will not have important impacts on the rest of  us.  Is it possible that their decision is bad for our system of government and the rule of law?  Despite some hand-wringing among well meaning people (which I will summarize below), I believe that is in fact a good day for America.  At worst, it is a push.  Yet that seems counterintuitive.  How can debate not be a good thing in a democracy?

Thursday, April 14, 2022

Law School Rankings and the Assault on Higher Education (or, Why Is Florida Doing so Well?)

by Neil H. Buchanan

The cynical game of ranking universities, colleges, and their sub-units has been destroying higher education for decades.  Although it is understandable that people would hope to find an objective method by which to compare different institutions ("Should I pay to send the twins, Missy and Trip, to College A or University B?"), no such method exists -- nor could it exist.  The entire enterprise has too many moving parts, and the people who rely on rankings have too many different goals and motivations, to make rankings meaningful.
 
And although it was once defensible to say that the perfect -- the Platonic ideal of comparatively measuring institutions' relative quality -- should not be the enemy of the good -- having at least a workaday, rough estimate of comparative quality, so that we could confidently claim that say, UCLA is superior to Florida State but that UCLA and Michigan cannot meaningfully be ranked relative to each other -- we quickly discovered that people want granular rankings and will treat one-slot differences as hugely meaningful.

Even worse, once it became clear that this entire inquiry could be turned into a profit center, one of the major news magazines in this country essentially became a rankings factory with a side gig in journalism.  And USNews soon learned that it could further increase profits by making sure that there is movement within the rankings from year to year, to generate interest and legitimacy.  Even so, they cannot allow the rankings to change too much, because that would make people think that the rankings are volatile and unreliable.  Again, it is all very, very cynical.

Not that this is new to anyone, but there is a twist.  Here, I want to comment on the recent release of the new law school rankings, focusing in particular on what happened -- or, more accurately, what did not happen -- to the ranking of my employer, the University of Florida Levin College of Law.  I do so not out of parochial interest but to make a counterintuitive point about how the toxic political enviroment in my state is running up against the incentives created by the USNews juggernaut.  Short version: USNews might (inadvertently but thankfully) be shielding state universities from politically motivated attacks by angry culture-war conservatives.

Wednesday, April 13, 2022

An Unfulfilled Promise of Religious Exceptions

 by Michael C. Dorf

In my latest Verdict column, I discuss two recent Supreme Court cases, decided one day apart. In a case on the plenary docket, Ramirez v. Collier, the Court held that Texas could not deny a condemned man the right to have his pastor lay hands on him and pray audibly in the execution chamber, thus granting a religious exemption from the (unwritten) Texas policy at issue. The next day, in a shadow docket order in Austin v. U.S. Navy Seals 1–26, the Court rejected the religious objections of a group of Navy Seals to mandatory COVID-19 vaccination.

Ramirez applied the Religious Land Use and Institutionalized Persons Act (RLUIPA); Navy Seals applied the Religious Freedom Restoration Act (RFRA); because the substantive test of the two "sister statutes" is identical, the juxtaposition raises a question. As Justice Alito--who joined the eight-justice majority in Ramirez--suggested in a dissent in Navy Seals, it looked like the Court was granting greater religious rights to a convicted murderer than to patriotic U.S. service members. My column offers some possible grounds for reconciling the two cases and thus rebutting Justice Alito's wildly implausible suggestion.

Here I want to discuss religious exceptions more broadly. I'll offer a hypothesis to partly explain why the bipartisan consensus in favor of religious exceptions that produced RFRA and RLUIPA in the 1990s has mostly evaporated. I'll then reconsider Ramirez in light of some roads not taken.

Tuesday, April 12, 2022

A Bitch, a Cow, and a Pig Walk Into a Bar: Why Misogynists Animalize Women

 by Sherry F. Colb

[Note to readers: The following is the text of a lecture I delivered last week as part of an online conference. At this link, you can view the lecture--which is pretty much a verbatim statement of what appears below followed by Q&A]

----------

To fully understand what happens when misogynists call women “bitches,” “cows,” and “pigs,” we need to begin with what has been the cardinal sin in science for many years: anthropomorphizing. To anthropomorphize in the prohibited way means to attribute supposedly uniquely human attributes to nonhuman animals. People writing for science journals were not supposed to say that an animal they had tortured “suffered” or that an animal reunited with a family member experienced “joy” or “pleasure.” Scientists could say that animals experienced “pain” because experiments often aimed at causing and then relieving pain, but “suffering” referred to a supposedly higher level experience special to humans. In some circles, it is even verboten to refer to a male animal as “he” or “him” or to a female animal as “she” or “her” when the preferred term is “it.”

Though scientists were the ones most committed to such linguistic censorship, there was nothing scientific about it. Nonhuman animals have the same basic brain anatomy, circuitry, and chemistry as we do. They suffer, they feel joy (when we are not slaughtering them), and their emotions—once you are around them for a bit—are quite clear and mirror our own. Indeed, and sadly, they feel empathy for us and react to our suffering, though scientists often seem incapable of returning that empathy. In one experiment, a scientist observed that the stress levels of rats in their cages rose when one of their number was taken out and decapitated. I say “sadly” because watching, let alone carrying out, the killing of an innocent animal appeared to have no similar impact on the human scientist.

Monday, April 11, 2022

Recency Bias and the Supreme Court as a Broken Institution

By Eric Segall

Despite last week's confirmation of Judge Ketanji Brown Jackson to replace Justice Breyer on the Supreme Court, a moment worthy of celebration, there is still an ominous despair on the political left about what the six-three conservative majority on the Court will bring our way over the next few (or many) years. This dread is justified. The Court is on the road to decimating women's reproductive freedoms, enlarging gun rights, ending affirmative action, and cutting back the administrative state to assist big business and multi-national corporations. 

These likely results, in addition to Senator Mitch McConnell's norm-breaking manipulation of the confirmation process, led to President Biden's Supreme Court Reform Commission and have sparked hundreds of essays, blog posts, and articles lamenting the current Court and advocating numerous fixes, including packing the Court, stripping the Court of jurisdiction, and maybe even disobeying the Court. I am sympathetic to all of these reforms but not because the Court's politics are different than mine but because the Court has needed this reform for a long time. 

Liberals and progressives would be better off focusing on the history of the Court than current events to support their calls for reform. The reality is that the times we live in are not unusual when it comes to controversies surrounding the Court. Recency bias has played a large role in the thinking of Court watchers that we are in more difficult times than ever when it comes to the Justices' decisions. But the truth is that the Court has been broken for well over 150 years. The Court needs to be fixed not because it is too conservative or at times too liberal but because we should not allow unelected, life-tenured judges to play such a large role in our country's politics. And that problem is anything but new both in terms of degree and kind.

Friday, April 08, 2022

Question Averted: Can the Vice President Break a Tie Vote on Appointments?

 by Michael C. Dorf

The confirmation of Judge/Justice-in-waiting Ketanji Brown Jackson to the Supreme Court is good news for the Court and the country. It also means that we don't have to face a question that has been never fully resolved: If the Senate deadlocks on a Supreme Court appointment, can the Vice President cast a tie-breaking vote in favor of confirmation?

Spoiler alert: Below I'll conclude that the answer to that question is probably yes, but along the way I'll explain why there really is no fully determinate answer. I'll then locate that fact in a somewhat broader context concerning the Constitution's ambiguities.

Thursday, April 07, 2022

The Big News Organizations Naively Play Footsie with Trumpists, but Why?

by Neil H. Buchanan
 
What are the major media organizations thinking?  It is hardly news that the "corporate media" (as people on the left refer to them) have always taken a soft stance on the issues that truly matter to the moneyed classes.  The major papers and networks have hidden behind false equivalence and bothsidesism since long before those two terms had even become part of the popular lexicon, but the big players are most notable for not rocking the boat.
 
It is barely necessary for Republicans to "work the refs," given how eager the mainstream media are to be played.  Early in Donald Trump's White House occupancy, a top editor at The New York Times announced with great solemnity that his newspaper was not part of The Resistance, saying that doing so would be "an untenable, non-journalistic, immoral position for The New York Times."  Immoral.
 
In some recent columns (most recently here, with internal links to earlier pieces), I have been writing about the immoral choices that the editors of The Times and others have been making.  They are not only agreeing with and amplifying the right's culture war tropes about "cancel culture" and "silencing" conservatives but continuing to reward young conservatives by airing their grievances. 
 
Recently, for example, a student at the University of Virginia was given space on the op-ed page to say that when she expressed her opinion in class, "[t]he room felt tense. I saw people shift in their seats. Someone got angry, and then everyone seemed to get angry. After the professor tried to move the discussion along, I still felt uneasy."  Stop the presses!  "I was shaken," she wrote, "but also determined to not silence myself."  How brave for a twenty-year-old to be confronted with disagreement -- people were shifting in their seats, mind you! -- but decide to persevere.

What is going on here?  Why are the most powerful voices in journalism playing this crazy game?

Wednesday, April 06, 2022

Teenage Dating Habits

by Sherry F. Colb

If I were to try to identify all of the offensive, outlandish, and horrifying things that happened during the confirmation hearings for Judge Ketanji Brown Jackson, I would be writing for several hours. I could focus on the overt racism of assuming that Judge Jackson, according to Senator Blackburn, thinks that judges must rely on critical race theory (CRT) in making judicial decisions. Why would anyone imagine that Judge Jackson believes such a thing? The answer is a mix of out-of-context quotations and the fact that she is Black, and some of the senators were ready to presume that all Black people who aren't attempting a coup must be disciples of Ibram X. Kendi.

Likely for the same benighted reason, Senator Cruz asked Judge Jackson whether she believed in racist babies. It turns out that Kendi, a fellow Black person, wrote a book called "Antiracist Baby," so Judge Jackson must believe in racist babies. No one admitted, of course, that they were acting like good old fashioned racists, but no one had to. I stayed away from listening to much of the hearings because I found the behavior of Republican Senators intolerably offensive and disgusting. For similar reasons, I avoid watching reality shows in which the objective is for the "star" to consume as much vile food as possible.

Tuesday, April 05, 2022

Hiding a Giveaway to the Rich Behind False Populism

by Neil H. Buchanan 
 
The Biden White House included in its new budget proposal, at last, a proposal to eliminate a tax giveaway to the wealthiest Americans that has infected our system almost since its inception a century ago.  Although that proposal is long overdue, it is also politically doomed, for two reasons.
 
In my Dorf on Law column last Thursday, I quoted Seth Meyers's sarcastic-but-accurate observation that this progressive tax proposal is "the part [of Biden's proposal that] they'll have to cut out before it'll pass."  Back in December, the ever-frustrating Senator Joe Manchin surprised everyone by indicating that he could support this kind of tax increase on the rich, but he continues to play the part of Lucy pulling away the football from the Democrats' Charlie Brown by now opposing the proposal -- but insisting, just to make Orwell's ghost scream, that "everybody has to pay their fair share" by making "other" changes, which he of course will later denounce.

The second reason that this proposal is politically doomed is that Republicans would immediately repeal it upon retaking power in 2025.  It is only a statutory change, after all, and they will even probably use the repeal bill as a Trojan Horse to add ever more egregiously regressive tax measures.  (Florida Senator Rick Scott has not backed off of his plan to increase taxes on tens of millions of poor and middle-class people, for example.)

Moreover, because Republicans are already putting in place all of the elements of a plan to seize control of our political system permanently, there is no chance that the Democrats will ever again hold power, making it impossible to imagine a time when they could repeal the Republicans' repeal.  We are still a dead democracy walking, and every day chips away at the last vestiges of hope for a better future.

Why, then, bother to discuss any proposal to make the tax code fairer?  In other words, why write this column at all?  I admit that I am doing so because the issues are simply interesting to me, but they are also consequential in the real world.  This is what is at stake from the standpoint of the plutocrats who are funding the Republicans' grievance-culture-camouflaged attack on the rule of law.  Money is at stake for those with (almost) all of the money, and they are willing to pull out all of the stops to keep what they believe is rightfully theirs.

Monday, April 04, 2022

Of Judge Jackson, Originalism, and a Tale of Three Scholars

 By Eric Segall

During her confirmation hearing, Judge Kentaji Brown Jackson seemed to self-identify as an originalist. She said the following: “The adherence to text is a constraint on my authority. I’m trying to figure out what those words mean, as they were intended by the people who wrote them.”

These comments, of course, were met with delight across the vast Federalist Society landscape and with despair among non-originalists of all stripes. The two best examples are a pair of essays by, on one hand, Professor John McGinnis, and on the other, Conor Casey and Adrian Vermule. Make no mistake, Casey and Vermule have the better of the argument by far.

Friday, April 01, 2022

Is Permanent Daylight Saving Time Unconstitutional?

by Michael C. Dorf

Barely two weeks ago, the Senate unanimously passed a bill--the Sunshine Protection Act--that would make Daylight Saving Time permanent. Unanimously, that is, among the Senators who knew this was happening. Will the House follow suit? If so, will President Biden sign the bill?

Time will tell, but the editors of the Arizona Law Review are not waiting to find out. They just went live with an online symposium somewhat pretentiously titled "The Unlawfulness of Federal Daylight Savings [sic] Time." Because Arizona is one of only two states (the other being Hawai'i) that don't currently use Daylight Saving Time, the forum is appropriate. Even better, two of the articles are surprisingly interesting. Here I'll say a few words about each.

Thursday, March 31, 2022

Why Is Taxing the Rich So Difficult? In Part Because People Who Should Know Better Are Being Foolish

by Neil H. Buchanan
 
The Biden White House recently proposed what it calls a "Billionaire Minimum Income Tax."  On his show last night, Seth Meyers quipped that the proposal was "part of [Biden's] 2023 budget, specifically the part they'll have to cut out before it'll pass."  He is right, which is a shame, because this is another instance in which completely sensible tax policy is going to give way to ignorance and bad faith.

It is no surprise that Republicans oppose this idea.  Not only do they oppose anything that Democrats favor, but their very reason for being is to reduce taxes on the rich.  What is annoying, however, is that people who truly should know better are saying completely fatuous things about the proposal -- statements that are so misguided that it makes me think that there is simply no way that our political culture could ever move forward with even the most promising improvements to tax policy.

The Biden proposal is based on plain-vanilla tax concepts that have been settled for decades, not just as a matter of law but as a matter of simple logic.  Nonetheless, some non-Republicans are arguing that he is trying to pull a fast one to get his way.  Nothing could be further from the truth.

Wednesday, March 30, 2022

Campus Intellectual Debate and the Heckler's Veto: Who Gets to Decide What is Unreasonable?

by Neil H. Buchanan
 
Late last week, Erwin Chemerinsky and Howard Gillman co-authored an important opinion column in The Washington Post: "Free speech doesn’t mean hecklers get to shut down campus debate."  As the law dean at UC Berkeley and the chancellor of UC Irvine, respectively, Chemerinsky and Gillman speak from the position of administrators.  But as respected scholars, they also speak from the viewpoint of professors, and they do so with great authority.
 
I thus was not surprised to find myself agreeing with their essential point, which is that "[f]reedom of speech does not include a right to shout down others so they cannot be heard."  Noting that some people defend those who shout down others by saying that the hecklers are themselves engaged in free speech, Chemerinsky and Gillman conclude that "[t]hat is wrong in terms of both the law and appropriate campus policy."
 
Again, I agree with the principle that there can be no heckler's veto in the context of discussions of ideas.  I do, however, see this as an opportunity to further clarify some points that I made in two columns last week, first on Verdict and then here on Dorf on Law.  In those columns, I argued that people are allowed to be disagreeable in the public square, and (in response to a fatuous formulation offered by the editors of the New York Times), I noted that there is nothing wrong with people being "shamed and shunned" for saying things with which others disagree.  That, I said, is precisely what Brandeis's "the response to bad speech is more speech" concept is all about -- because the right to speak does not include the right to be agreed with, or even to be listened to.

But wait.  Is that not what worries Chemerinsky and Gillman?  No, and it is useful to explore why there is no inconsistency here.

Tuesday, March 29, 2022

RFRA in the Military on the Shadow Docket -- With a Tangent on Trump v Hawaii

 by Michael C. Dorf

Last week, in Austin v. US Navy Seals 1-26, SCOTUS stayed a federal district court order that had barred the Navy from considering the "respondents' vaccination status in making deployment, assignment, and other operational decisions." It was a rare shadow docket case in which the Court chose to intervene against religious claimants and in favor of the government's assertion of public health interests. The very brief per curiam does not provide reasons and leaves open further consideration on the merits of the certiorari docket, but even at this stage, a concurrence and a dissent raise interesting questions.

The majority comprised the Democratic appointees and what we might describe (recognizing that these descriptions are all relative) as the "moderate" conservatives: Chief Justice Roberts and Justices Kavanaugh and Barrett. Justice Kavanaugh also wrote a concurrence in which he spoke only for himself. Justice Alito wrote a dissent in which Justice Gorsuch joined. Justice Thomas dissented without opinion, but I suspect he would have joined Justice Alito's dissent were he not hospitalized last week.

Here I'll make a point about an interesting question about the Religious Freedom Restoration Act (RFRA) raised by the Kavanaugh concurrence. I'll then turn to a tension between the Alito dissent and the opinion he and Justice Gorsuch both joined in Trump v. Hawaii, the travel ban case.

Monday, March 28, 2022

How to Fix our Broken Confirmation Process

 By Eric Segall

If there is one thing that liberal, conservative, and moderate Supreme Court watchers and commentators all agree on is that the Supreme Court confirmation process is broken and has been for a long time. Last week was a painful exercise in pandering and deflection from all involved, including the nominee -- but that's not her fault. She played the game by the normal rules and I do not necessarily blame her for that. And to be clear, I strongly support her confirmation.

But, because of those rules, like all Supreme Court confirmation hearings, this one was mostly a sham. Rather than focusing on the real views of the nominee, we had to listen to Republicans obsess over child pornography and critical race theory while the Democrats spent most of their time on the nominee's character as opposed to her legal views. The nominee said she was an originalist, but that could mean many things inconsistent with what people think originalism is, and she paid lip service to the idea that judges "interpret don't make the law." And of course there were far more speeches by Senators on both sides of the aisle than questions. As always, it was one big charade.

Friday, March 25, 2022

What If Lindsey Graham Really Wanted to Talk About Sentencing Under the Guidelines? A Close Reading of USSG §2G2.2(b)(6)

 by Michael C. Dorf

Having kept her cool through the ordeal of misogynistic, sometimes racist interruptions and mischaracterization of her record by various Republican members of the Senate Judiciary Committee, Judge Ketanji Brown Jackson will now likely be confirmed, absent some unexpected hitch (which is possible in a 50-50 Senate). SCOTUS confirmation hearings have become substantially less informative since 2005, when then-Senator Joe Biden aptly called the process a "kabuki dance." Even so, amidst the cringe-inducing botching of the law by Senators and the artful dodging and absurdly formalistic accounts of judging by the nominees (of both parties), one occasionally finds something interesting. That didn't happen this week but it almost did.

Much of the questioning by the likes of past and future GOP Presidential hopefuls Ted Cruz, Lindsey Graham, Josh Hawley, and others focused on Judge Jackson's sentencing record in the handful of cases involving convictions for child pornography possession in which she had substantial discretion to choose a sentence. That record does not differ substantially from the record of other federal judges, including Republican appointees whom the Republican Senators recently confirmed for promotions. Confronted with that fact, Hawley, the creator of the Jackson-is-soft-on-pedophiles smear, said that he hadn't voted to confirm those judges to the U.S. Supreme Court--which is a complete non sequitur, given that neither Supreme Court Justices nor federal appeals court judges exercise sentencing discretion. If a nominee actually were soft on crime, that might be a reason not to confirm them to a district court judgeship, but it has no bearing on any supposed distinction between a federal appeals court judge and SCOTUS justice; indeed, if it has any bearing, it cuts the other way, as sentencing appeals routinely come before appeals court judges but rarely come to the Supreme Court.

Of course, none of that mattered to Hawley, Cruz, Graham, and the rest of GOP Senator-lawyers who should know better. The smear appears intended to put pressure on Joe Manchin via his FoxNews-informed constituents and probably also as a shout-out to the roughly one quarter of their own constituents who believe the QAnon lunacy that the Democratic Party and federal government are run by and for pedophiles.

In taking seriously a point raised by Graham during his questioning of Judge Jackson, I thus want to be clear that I know he was not acting in anything resembling good faith. I use one line of questioning simply as a launching point to discuss an issue that might have been raised and fruitfully discussed if these hearings were serious.

Thursday, March 24, 2022

The New York Times Inadvertently Exposes the Emptiness of Its Embrace of the 'Cancel Culture' Trope

by Neil H. Buchanan

I have been saying for years that "political correctness" is a meaningless term, and I have repeatedly called on people who should know better to stop using it -- even (especially) when they think it does have a straightforward meaning, such as "saving 'differently abled' rather than 'disabled.'"  This has all become much worse, however, since the right's PC-panic-on-steroids of "cancel culture" and "wokeness" emerged over the last year or so -- again, abetted by liberals who truly should know better.

One bit of evidence that these terms merely mean "something I don't like and want to disaparage" came in yesterday's announcement by Donald Trump that he is no longer endorsing Mo Brooks's Senate run in Alabama.  Why did Trump turn against the man who, perhaps even more than Rudy Giuliani, was a key part of the effort to keep Trump in the White House illegally?  Brooks, Trump tells us, is now "woke" and thus unworthy of the MAGA brand.  I kid you not.

This might all be pretextual, as some commentators have suggested that Trump needed a reason to pull his nomination from Brooks's sure-to-lose candidacy (currently running a distant third place in the polls for the Republican primary).  Even so, that Trump contrived this excuse -- Brooks apparently (and surprisingly accurately) told Trump that there is no way to "rescind" the 2020 election and run a Special Election to reinstall Trump in Washington -- and then slapped the insult "woke" on the guy makes my point better than I ever could.

That does not prove, of course, that there is no content to the PC/cancel culture/woke trope.  Just because many people badly misunderstand something -- like Herschel Walker, another embarrassing Republican candidate for Senate, saying that evolution is wrong because if man evolved from apes then there would no longer be apes -- does not mean that there is no there there.  The difference is that people who care to do so can figure out what evolution is (and is not).
 
Not so with PC/cancel culture/wokeness.  It is all vacuous word play that reinforces a reactionary mindset.  And as I discuss in my new Verdict column today, the editors of The New York Times, of all people, have unintentionally added further evidence of same.  It is a rather interesting, if depressing, story.