Thursday, October 06, 2022

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

by Michael C. Dorf

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

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

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

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

Wednesday, October 05, 2022

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

 By Eric Segall

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

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

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

Tuesday, October 04, 2022

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

by Neil H. Buchanan

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

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

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

Monday, October 03, 2022

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

by Sidney Tarrow

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

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

Friday, September 30, 2022

Is Putin Bluffing?

 by Michael C. Dorf

Just about everybody who heard Vladimir Putin say "I'm not bluffing" when he threatened nuclear war last week probably thought, as I did: (a) Well that's terrifying; and then (b) but the fact that he says he's not bluffing hardly demonstrates that he's not bluffing, because admitting that one is bluffing would undercut the point of bluffing.

Needless to say, whether Putin was bluffing is an existential question. Here I'll offer a few thoughts--recognizing that I have no special expertise in this matter but also recognizing that the people who do have expertise may not be very good at this sort of thing either, as it calls for game theory, military intelligence, and most importantly, a psychological assessment of a man who has been isolated from direct interaction with anyone who might provide useful information.

Thursday, September 29, 2022

Content-Free Content and the Republicans' Commitment to Vacuousness

by Neil H. Buchanan

At some point during Donald Trump's temporary occupation of the White House, Republicans decided that they did not need to be in favor of any specific policies.  Instead, they only needed to be in favor of outcomes that people like, such as "prosperity" and "strength."  Suddenly realizing that they could simply skip over the means and directly embrace the ends, Republicans apparently concluded that they did not need to bother explaining to anyone how they would move us away from American carnage and toward the wonderful world of great-again greatness.

This was most famously on display at the 2020 Republican National Convention, when the party decided not to issue a new version of its quadrennial platform, saying instead that they were in favor of whatever Trump wanted to do.  That was a rather astonishing moment, because no one had ever confused a party platform with an action plan from a serious public policy think-tank.  Even endless platitudes had become too much for Republicans by 2020, however, because the most reliably safe defaults -- opposing tyranny abroad, supporting law enforcement, favoring free trade -- had all become too risky, given that Trump had to varying degrees abandoned all of those comforting standards.

Earlier this week, however, the would-be Republican Speaker of the House issued something that purported to be an agenda that his candidates could bring to the American people, the pretentiously named "Commitment to America."  Other than trying to recreate the electoral success that followed Newt Gingrich's contract on America in 1994, why did Kevin McCarthy bother to do this?  Why say anything at all?  Short answer: Because he did not in fact say anything.  For the longer answer, read on.

Wednesday, September 28, 2022

What Futile Proposals Can Achieve

by Michael C. Dorf

My latest Verdict column urges Congress to enact legislation making clear that Title VI of the Civil Rights Act of 1964 does not bar race-based affirmative action by recipients of federal funds. As I explain in the column, depending on when such legislation went into effect, it would either prevent or reverse a decision by SCOTUS in the pending Harvard case, in which the Court will very likely hold that Title VI forbids nearly all race-based affirmative action. My proposed statute would do nothing for public colleges and universities like the University of North Carolina, the defendant in the companion case, because the Court will likely invalidate race-based affirmative action in that setting using the Fourteenth Amendment's Equal Protection Clause. Still, a half-victory via Congress is better than a total defeat via the Supreme Court; thus, my proposal.

However, as I acknowledge in the column, Congress almost certainly won't take the action I recommend, which would be opposed by all Republicans and some unknown but probably substantial number of Democrats, given what we know about public opinion regarding affirmative action. And so I conclude the column by asking whether there is any point in making proposals that are doomed to failure. I say that there is, citing how right-wingers played the long game on abortion. So too, progressives on race and other matters can make proposals now even if they have little chance of success.

In this accompanying essay, I'd like to expand a bit on that last point and say something broader about what might seem like futile advocacy. I'll identify five goals a scholar might have in making a law reform proposal that is doomed in the short term.

Tuesday, September 27, 2022

We Don't Know What a Democracy Is, but We Know What it Isn't -- and This Is Not a Democracy

by Neil H. Buchanan
American democracy continues to blunder forward, with even the most informed people imagining that although things are scary, somehow everything is as it has always been.  In my most recent Dorf on Law column, I commented on some shockingly blase comments by David Leonhardt, who is a New York Times columnist and a former Washington bureau chief at that important newspaper.
Leonhardt managed not only to bothsides the idea of gerrymandering but also to dismiss the extent of Republicans' redistricting successes, barely suppressing a yawn while concluding that "the current House map slightly favors Republicans, likely by a few seats."  So sure, he insinuated, maybe Republicans are doing the whole gerrymandering thing a bit more aggressively than Democrats are, but the extent of their success is "slight," only amounting to "a few seats."  Time to move on to other, more sexy, topics.  Right?

In last Thursday's column, I lambasted Leonhardt heartily, but not enough.  His comments make clear that gerrymandering has become one of those existential problems -- perhaps only rivaled by the influence of moneyed interests in elections -- that many non-Republicans are now evidently too bored to care about.  This is a tragedy, because no matter what else one might think about America's political problems, there are few greater threats to the notion of representative democracy than allowing politicians to lock themselves into power.
Even so, the gerrymandering question is in fact a truly interesting question -- contrary to the farcical reasons that people like Leonhardt use to suggest that it is unimportant -- because the entire concept of drawing representative districts forces us to confront almost unanswerable questions.  While there are no right answers, however, we can be sure that what Republicans are offering are nothing but wrong answers.

Monday, September 26, 2022

The Supreme Court and Race: A Sordid History is About to Repeat Itself

 By Eric Segall

The Supreme Court’s new term starts a week from today with several scary cases on its docket. Among them are two affirmative action cases. It is more than likely that the Court will issue a decision prohibiting both public universities and private ones that receive federal funds from using race in any way in their admissions processes. And, once again, the Court will stand directly in the way of racial progress.

In 1857, the Supreme Court stopped Congress from prohibiting slavery in the territories despite express constitutional text granting Congress the power to make all “rules and regulations” for those territories. In 1883, the Supreme Court prevented Congress from prohibiting racial discrimination in places of public accommodations such as hotels and restaurants despite Section 5 of the 14th Amendment, which gives Congress the power to enforce the equal protection clause. But in 1896, when Louisiana required separate (and obviously unequal) seating compartments for Blacks and Whites on railroads, the Supreme Court said yes, ushering in generations of segregation in public schools and government and private facilities.

Even when the Court finally ordered public schools desegregated in 1954 in Brown v. Board of Education, the Justices failed to enforce that decision. Ten years later in twelve Southern states, approximately 98% of schoolchildren attended completely segregated schools. Only when Congress passed the Civil Rights Act of 1964 did segregation under law begin to wither.

In part due to the Court’s horrific record on racial issues, we remain a country where institutional racism still runs rampant. To address these racial inequities, universities across America employ limited racial criteria to admit diverse classes of students to help Black Americans and other people of color overcome our racist past and expose young White Americans to a hopefully less racist future.

Friday, September 23, 2022

Nit-Picky Procedural Criticisms of the Migrants' Suit Against Ron DeSantis et al

by Michael C. Dorf

In addition to the possibility of criminal charges for their role in using Venezuelan migrants as what I called human spears in my Tuesday blog post, Florida Governor Ron DeSantis, other Florida officials, and the State of Florida itself now also face a civil lawsuit filed on behalf of the migrants. The complaint alleges a much more elaborate plot to trick the migrants than has been widely reported. For example, one of the plaintiffs was (allegedly) put up in a hotel for five days and told by someone secretly working for DeSantis that if her "family got on the flight" the DeSantis agent had "arranged, then Plaintiff would be provided with permanent housing, work, educational resources for her son, and help changing her address for immigration proceedings." The factual allegations, if true, indicate that this was indeed a carefully calculated ruse and stunt.

But what about the law? The complaint asserts common-law, statutory, and constitutional claims. I haven't looked too deeply into the underlying law, but on the surface, at least some of them look plausible. After all, even undocumented immigrants have civil rights. Key provisions of federal law, including the Fourteenth Amendment's equal protection and due process clauses, protect "persons," not just citizens. And in any event, the migrant plaintiffs are not undocumented immigrants in the sense in which that term (or the offensive term "illegal alien") is commonly used. They are asylum seekers who did not sneak across the border but turned themselves in to US border patrol officials and were then paroled pending hearings. Thus, unless and until their asylum claims are rejected, they are in the US legally.

Accordingly, I have considerable sympathy for the migrants' lawsuit and hope that it may ultimately succeed in at least some respects. Nonetheless, I want to raise questions about some of the procedural aspects of the case. I'll focus mostly on: (a) the decision to bring the case as a class action on behalf of the Venezuelan migrants as well as similarly situated persons in the future; and (b) the decision to include the State of Florida as a defendant.

Thursday, September 22, 2022

Why Is It So Difficult for Pundits to Understand Gerrymandering?

by Neil H. Buchanan
At long last, the mainstream press and some of the pundits who are accepted in polite society are taking more and more seriously the idea that the US might soon cease to be a functioning constitutional democracy.  I continue to believe that it is already too late to prevent the worst from happening, but I also remain willing to reassess my predictions as new evidence comes in.

Although Democrats have recently been feeling better about their chances in the midterms, there are still plenty of reasons to think that it will all go very badly for them (and the country) on November 8.  As but one among many examples, despite being one of the weakest candidates in the history of the country, Georgia's Republican candidate for the Senate is actually leading in the polls.  No matter how extreme or crazy (or blatantly dishonest) the Republican nominees are for key gubernatorial and US Senate races, there is no evidence of any dams breaking as people say: "This is too much."
My purpose here, however, is not to predict electoral outcomes.  That is not my skill set, and frankly, I would seriously have to reconsider my life choices if that is what I did for a living.  Instead, I am interested in the apparently unbreakable bad habits that cause people to continue to misunderstand even the most basic threats to our political system.

Wednesday, September 21, 2022

The End of a Pandemic Is Not an All-Clear Signal -- But It Is Good News All the Same

by Neil H. Buchanan 
For the past several months, Covid-19 has continued to kill between 2500 and 3000 people every week.  This is good news only when compared to pre-vaccine times, when the Covid death rate was much higher.  It would thus be inaccurate to say, for example, that "Covid is over," or that everything can go back to normal again.

Some deniers were in fact saying irresponsible things along those lines from the very beginning, and they were and are wrong.  President Biden, however, did not say that.  He said during a recent interview that the pandemic is over, which can be true even while it is also true that we need to continue to worry about Covid-19 going forward.  Unsurprisingly, however, many people immediate jumped on Biden for his comments.

Biden was right, and even though some commentators are characterizing the White House's efforts to clarify the situation as "walking back" his comments, the better way to think about it is to say that it is important for the Biden team to make clear what he did and did not say.  And what Biden said was true.  Why resist good news?

Tuesday, September 20, 2022

Ron DeSantis Appears to Have Admitted to Violating the Texas Criminal Law

 by Michael C. Dorf

Let's begin with the moral point. Even if one believes that federal immigration policy needs drastic reform, using undocumented immigrants as pawns and weapons is despicable. A recent Washington Post story thus aptly compared Texas Governor Greg Abbott and Florida Governor Ron DeSantis to Belarusian dictator (and Putin ally) Alexander Lukashenko, who sought to weaponize migrants by deceiving them and sending them across the border to ostensibly more welcoming states but jeopardizing their health and safety in the process. The WaPo story also calls out Turkish President Recep Tayyip Erdogan for a similar policy.

To be clear. It should be acceptable for an immigration hardliner to make the rhetorical point that liberals are hypocrites for opposing immigration crackdowns while secluded in exclusive enclaves like Martha's Vineyard. Maybe they're right; maybe they're wrong. The "limousine liberal" charge is an old one that may have more or less force depending on the circumstances. But one can make the rhetorical point--one can even dramatize it--without turning undocumented immigrants into what, by analogy to the notion of human shields, we might call "human spears." That, however, is what Abbott and DeSantis have lately done.

The Abbott/DeSantis stunts are thus plainly immoral. Are they also illegal? So asked a recent NY Times article. The article quotes a law professor and a lawyer for the respective propositions that inducing people onto airplanes to fly them somewhere other than where they were told they were going is tortious and, under some circumstances, perhaps even unconstitutional. I agree. But the article's author goes on to state:

While critics have compared the actions of Mr. DeSantis and Mr. Abbott to human trafficking or kidnapping, multiple lawyers cast doubt on the possibility that they could be prosecuted for such crimes because no evidence has surfaced that the migrants boarded the flights or buses unwillingly.

Well, it depends on what one means by "unwillingly."

Monday, September 19, 2022

Ten Ways To Improve our Constitution in Honor of Constitution Day (Or in Other Words, My Personal Constitutional Fantasy)

 By Eric Segall

Saturday September 17, 2022 was officially Constitution Day in America, though many universities (like mine) are celebrating it today. Our Constitution is the oldest written Constitution governing an entire country. Ratified in 1789, it has been amended only 27 times and 10 of those happened in 1791 (The Bill of Rights). 

It certainly feels like the Constitution is failing America these days (though it can reasonably be argued that Americans are failing America these days). In any event, in honor of Constitution Day, here are my ten most important proposals to improve our foundational document. On one hand, I understand this is all pure fantasy. On the other hand, shouldn't we take a hard look at a document that was ratified over 200 years ago?

This list obviously reflects my personal biases and values. How could it not? Other than number one, which I feel is the most important, the list is in no particular order.

1) The Constitution should be amended to guarantee every American a minimum level of food, clothing, shelter, and health care. Even if such a provision would be largely symbolic and aspirational, shouldn't we strive towards that goal? Our defense budget in 2021 was over $800 billion. I think we can afford to move towards a country that eliminates poverty.

Friday, September 16, 2022

A Supremely Dark Future Way Ahead of its Time

By Eric Segall

On October 18, 2018, I wrote the piece below for this Blog. I dated the fictional and what I thought satirical letter to my Granddaughter August 24, 2045. Boy was I off the mark as that dark future came much sooner than expected in many of its doctrinal predictions (also I wrote this before Justice Barrett was nominated to the Court). This piece is sadly more timely today than when I wrote it so thought I'd post it one more time. Constitutional change can come very quickly, and as I've paraphrased Richard Posner many times, if changing judges changes law, do we know what law is?
The letter is exactly as I wrote it almost four years ago.

Thursday, September 15, 2022

Is Democracy Still Doomed? If So, How Bad Will Things Become?

by Neil H. Buchanan

My life has recently been dominated by extraordinary events, some heartbreaking and others validating, so it seems a good idea to try to return to something like normal.  Unfortunately, what has counted as normal for me over the last seven years has been to provide commentary about the ongoing decline and fall of the American experiment.  While I have been otherwise occupied over these last few months, has anything happened to offer some hope that this country's descent can be arrested and maybe even reversed?

There have, I am pleased to say, in fact been more than a few heartening developments on the social and political fronts.  Unfortunately, the larger story is that the tide is still not going to be turned.  My goals in this column are to explain why there is still every reason to think that our slide into autocracy will continue (if not accelerate), and then to offer a few thoughts about just how bad things will become.
At Dorf on Law, we occasionally joke about who is the most pessimistic among Professors Dorf, Segall, and Buchanan.  My competitors are capable and insightful, but I bow to no one.

Wednesday, September 14, 2022

RFRA and the Right-Wing Two-Step

 by Michael C. Dorf

My latest Verdict column discusses an execrable ruling by Federal District Judge Reed O'Connor. He construes the Religious Freedom Restoration Act (RFRA) to exempt a for-profit corporation with 70 employees from the requirement--which implements a provision of the Patient Protection and Affordable Care Act--that employee health insurance cover PrEP, a medication that greatly reduces the risk of infection with HIV/AIDS. Why? Because the owner of the corporation believes on religious grounds that covering PrEP would make him complicit in same-sex sex acts, all sex acts outside of (opposite-sex) marriage (the only kind of marriage he recognizes), and illicit drug use. How? Well, because people who take PrEP will be less deterred by the risk of HIV/AIDS and will thus be more likely to engage in such activity. 

As I explain in the column, the decision is outrageous--so much so that I found that I couldn't really come up with any hypothetical examples of similar logic to illustrate the outrageousness. Nothing was quite as bad as the actual case.

In today's accompanying essay, I want to focus on a particularly egregious move the Judge O'Connor makes. After finding that the application of the employee health insurance mandate to this particular plaintiff corporation would substantially burden its owner's religious exercise and thus trigger RFRA, Judge O'Connor acknowledges that the government has a compelling interest in combating HIV/AIDS. Nonetheless, he rules for the plaintiff because he says that the requirement of covering PrEP through employer-provided health insurance is not the least restrictive means of pursuing that compelling interest. That conclusion in turn rests in part on the observation that rather than compelling employers to provide the coverage, the government could simply provide the insurance or the PrEP itself directly.

As I explain in the column, that move is supported by precedent. Justice Alito, in his opinion for the Supreme Court in the Hobby Lobby case, made the same assertion with respect to contraception coverage. And in both cases, that's true--in theory. But in practice this contention constitutes what I'll call the right-wing two-step. It's disingenuous in the extreme. And it's ubiquitous.

Tuesday, September 13, 2022

Boris, Elizabeth, and the Rot of Inherited Privilege (a retitled Dorf on Law classic)

Dear Dorf on Law Readers: In light of the momentous transformations in the UK over the past week or so -- the forced departure of a privileged buffoon who had somehow become Prime Minister, quickly followed by the death of a ceremonial monarch -- it seems apt to republish a column that I wrote almost three years ago, then titled "Downton Economics (psst, it’s not capitalism!)."  Enjoy!
by Neil H. Buchanan

I am choosing not to write about impeachment today, opting instead to discuss fantasy and history.  Specifically, I want to offer some thoughts inspired by the TV show "Downton Abbey" and its new sequel movie of the same name, the latter of which I saw this past weekend.  But fear not: You do not need to have seen (or liked) the show to follow the argument here.

After briefly summarizing the relevant aspects of the show and film, I will focus on a particularly odd theory that the writers invoke to justify the class-based aristocratic system that they celebrate so fondly.  Whatever else one might say about it, the economic system in "Downton Abbey" is not capitalism.  It is not socialism either, but it might be something akin to communism.  The Dowager Countess would be shocked!

Monday, September 12, 2022

Fractional Originalism and the Fourth Amendment's Trespass Test

by Matthew Tokson

In recent years, the Supreme Court has adopted a trespass test in Fourth Amendment law, holding that the Fourth Amendment applies to government encroachments on a person’s property, among other things. This addition to Fourth Amendment law was mostly seen as a victory for privacy advocates. For example, see last week’s ruling by a federal court that chalking the tires of parked cars to determine if they’d overstayed the parking limit was a Fourth Amendment search, requiring a warrant. Decisions like this seem quirky but ultimately favorable to criminal defendants and citizen privacy. 

In reality, however, these cases can result in police using far more intrusive and technologically advanced forms of surveillance. The trespass rule does not necessarily bolster privacy on net. And it has already made something of a mess of Fourth Amendment law. Arbitrary, poorly designed rules eventually start to produce bad outcomes, no matter how benign they seem at first.

Friday, September 09, 2022

Why Universities Matter (aka Buchanan on Lawsky on Buchanan on Dorf on Law)

by Neil H. Buchanan

This week, my law school (the University of Florida Levin College of Law) initiated a series of celebrations of the work of those of us who are honored to sit on "eminent scholar chairs" in various areas of the law.
As I explained at the beginning of Wednesday's column, "Lawsky on Buchanan on Dorf on Law," I was the first on the list of honorees, and we held the inaugural event on Tuesday of this week.  I then turned over the remainder of that column to Professor Sarah Lawsky, whom we had invited as the outside speaker to evaluate and sum up my scholarly work to date.  Because Professor Lawsky is much better organized than I am, she had written her remarks in advance, which made for an interesting and engaging talk and allowed me to ask for her permission to publish the text of her remarks on this blog.  (Obviously, she generously agreed.)
After she spoke on Tuesday, it was my turn.  Again, I am not particularly well organized, and I have always been more comfortable speaking without notes.  Although feedback from audience members afterward indicated that everything went well, this leaves me in the position of not having a prepared speech that I could publish here.  Moreover, we did not record the event -- and even if we had, I would have spent hours turning the transcript from spoken words into written text.

Therefore, in today's column I want to write about the main ideas that I discussed on Tuesday, but without pretending (or even wanting) to replicate the talk from memory.  Rather, I suspect that anyone who attended Tuesday's event might read this column and think, "Yeah, I remember Neil talking about those topics, but this is clearly not verbatim."  And that is fine, because it is the ideas that matter here, not the exact words that I chose on a particular day while speaking extemporaneously.

Here, then, is the essence of the main ideas that I hope to have conveyed on Tuesday and that I think are important enough to share with a wider audience.

The title of today's event is: "Scholarly Impact: Sarah Lawsky Celebrates Neil Buchanan's Academic Impact and Contribution."  Professor Lawsky argues that my work has had an impact, which obviously is a pleasing thought for me.  But "did any particular professor have an impact, and how much?" -- while interesting -- begs a larger question about the academic enterprise.  Why, after all, do we care whether scholars have an impact?  Why does it even matter?

Thursday, September 08, 2022

Of Love and Loss

By Eric Segall

Followers of this blog know that Mike, Neil and I have each suffered great losses over the last few weeks. Mike lost his wife Sherry Colb, Neil lost his sister, and my best friend of 45 years and college roommate lost his wife Bonni the day after Sherry passed. In fact, I was on my way to Sherry's funeral when Rob called me to tell me Bonni had died.

I am so grateful to Mike, whose name is on the blog, to let me write my weekly posts for the last decade mostly about how the Court isn't a court, how originalism is mostly about faith not reason, numerous other legal issues, and, from time to time, about personal matters, sometimes very serious, like when my Mother died, and sometimes trivial, like my love for the NBA. Writing a weekly post, while obviously often self-indulgent, has been a great release for me over the years and I greatly appreciate Mike and Neil, and the regular readers of this blog, for putting up with all this. 

So with all that as a disclaimer, I want to say just a few words about love and loss.

Wednesday, September 07, 2022

Lawsky on Buchanan on Dorf on Law

by Neil H. Buchanan
This year, the University of Florida's Levin College of Law is holding a series of events honoring the professors who hold Eminent Scholar Chairs at the college.  Yesterday was the first such event, and as it happens, I was the first person to be feted.
After introductions by Professor Charlene Luke and Dean Laura Rosenbury, my friend and tax colleague Sarah Lawsky offered some very generous remarks about my work, after which I addressed the audience, followed by Q&A and a lovely reception for those of us who attended in person (which, for reasons that I will explain some other time, unfortunately could not include Professor Lawsky).

Professor Lawsky has generously allowed me to post her remarks below.  In my Dorf on Law column on Friday of this week, I will summarize the comments that I delivered at the event.

Scholarly Impact: Sarah Lawsky Celebrates Neil Buchanan's Academic Impact and Contribution
by Sarah Lawsky
I’m truly honored to be here today celebrating Neil Buchanan. I met Neil when I was just becoming a law professor and trying to choose which law school to work at. One of the options was George Washington Law, where Neil had already accepted a job in a lateral move. We met at a restaurant in New York so that he could, I guess, help with recruiting me. I don’t remember how many hours later we left, but it was a lot of hours, and while I suppose I learned about GW, what I really learned is that Neil and I had a lot to talk about. And indeed, that dinner at the Zen Palate restaurant started a conversation that has been going on now for many years, even as we went from being next-door office mates at GW, to working in far-flung locations across the country or, in Neil’s case, across the world, and now here, to celebrate Neil’s appointment as the James J. Freeland Eminent Scholar Chair in Federal Taxation at the University of Florida Levin College of Law.

Today I will first discuss Neil’s academic scholarship, and then I will talk about some other ways Neil has influenced policy and the tax legal academy.

Tuesday, September 06, 2022

Trump’s Fourth Amendment Arguments and the Mar-a-Lago Search

by Matthew Tokson

Following the FBI’s search of Former President Trump’s Florida estate, most attention has focused on Trump’s call for a special master to review the seized documents. Trump filed a complaint in federal court asking for the appointment of an external party to review each of the documents to filter out those that implicate executive or attorney-client privilege. As fate would have it, his case was assigned to Judge Aileen Cannon, a Trump appointee. Before the government's response brief was submitted, Cannon issued a preliminary order indicating her intention to appoint a special master. On Labor Day morning, she granted the request for a special master and and enjoined the DOJ from further reviewing any seized documents. At the least, Trump has succeeded in delaying the investigation and obtaining a thorough privilege review.

Ultimately, however, Trump's complaint is largely premised on Fourth Amendment claims rather than privilege claims. His strategic goals appear to involve scrutinizing the warrant affidavit, having the documents returned to him on the basis of a Fourth Amendment claim, and/or suppressing the documents in a subsequent prosecution. Trump says that, following the special master’s privilege determinations, he “will establish standing to contest the unconstitutional search.” This post evaluates the Fourth Amendment arguments that are the basis of Trump’s motion. 

Friday, September 02, 2022

Abortion and Physician Assistance in Dying: A Sherry Colb Classic

[Editor's note: The following column first appeared on Verdict on March 23 of this year, after the Dobbs oral argument but before the leak or release of the opinion. Sherry's linkage of the Court's abortion jurisprudence to its no-right-to-die jurisprudence was prescient: Justice Alito's Dobbs opinion leaned heavily on the test for unenumerated rights articulated in the Glucksberg case, despite the fact that it had been essentially repudiated already. The linkage was also more direct. Sherry believed strongly in what she called a right to a peaceful death, as reflected in the column republished below, a completed but not yet published draft of a law review article (which I'll see through to posthumous publication on her behalf), and her personal choices: had her illness not worsened so suddenly, she had planned to travel either to Switzerland (where non-citizens are permitted to physician aid in dying) or possibly Oregon (where the same is at least theoretically possible pursuant to a settlement signed in March of this year) to end her life on her terms when the time came. Although she had excellent palliative care in her final week, that was an imperfect substitute.]

Abortion and Physician Assistance in Dying

by Sherry F. Colb

During the Mississippi abortion case argued earlier this term, the attorney defending the prohibition invoked the case of Washington v. Glucksberg, which the Court decided twenty-five years ago. In Glucksberg, the Court held that the government may prohibit physician assistance in dying for patients suffering end-of-life pain and wishing to control the timing and circumstances of their deaths. The more humane among the Justices who signed onto the 9-0 decision essentially said “let them eat palliative care” in rejecting the claim that people have a fundamental right to end their lives when their suffering has become too much to bear. In this essay, I will consider the relation between the abortion right and the right to physician assistance in dying, both of which will enjoy no constitutional protection under the religious extremist majority that now rules the Supreme Court.

Thursday, September 01, 2022

Remembering and Celebrating Sherry Colb

by Neil H. Buchanan
A week ago today, Professor Michael Dorf posted on this blog the sad news of Professor Sherry Colb's passing earlier that morning. As he noted, Professor Colb was one of the bloggers on Dorf on Law, and she was also his "co-author, colleague, best friend, and wife for over 31 years."  Earlier this week, I posted a few brief comments but conceded that I was not yet prepared to wrestle with my emotions in a way that would allow me to write a proper eulogy.  I added that "I will soon publish my own thoughts about the death of my wonderful friend and colleague."
I am still not ready, but I doubt that I ever will be.  Here, I will do what I can.  As an aside, I generally maintain a certain formality in my writing on Dorf on Law.  Under the circumstances, however, I will set that practice to one side as I discuss personal matters.
Because Mike's published eulogy was so beautiful, I asked him whether it would even be appropriate for me to add a eulogy of my own.  If he wanted his to be the last word (at least here), I would never want to overstep.  He quickly said that, quite to the contrary, he would welcome my additional comments.
Given that I have known Sherry for about 33 years, I am feeling a great loss.  What can I say about her?

Wednesday, August 31, 2022

Originalism, Deference, and Judicial Hypocrisy

By Eric Segall

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

Tuesday, August 30, 2022

One of My Best Moments with Sherry Colb

by Neil H. Buchanan

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

Today, I want to share a column that I wrote in 2008, which was my announcement that I had become a vegan.  I include a link to it every year in my "veganniversary" posts, but I am republishing it today because, as the title of today's column indicates, publishing that column led to one my best moments with Sherry.
The moment was great not only because she had been hoping to convince me to become a vegan -- although that was obviously important and essential.  I made the decision shortly after a visit to Ithaca that I describe in the column, but I decided to let Sherry and Mike know not be telling them directly but simply by publishing the piece.  It was thus a surprise to them.  Immediately upon reading it, Sherry contacted me to tell me how happy she was.  Referring to her (then 6- and 4-year-old) daughters, she said that "the girls were screaming with delight when I told them, because they want you to love animals as much as they do."
As an aside, I should update my statement in that column that it is "difficult ... to be a vegan."  I am happy to report (as I have noted in many of my columns since 2008) that it is now much, much easier to be a vegan than it was fourteen years ago.  There are remaining challenges, of course, but in the time that Sherry was such a forceful advocate for veganism, the world entered the early stages of a virtuous cycle, with more people becoming vegans, which led to restaurants and food producers bringing out more and better vegan foods, which then led to more people becoming vegans.  Will the cycle continue and even accelerate?  I think so, especially if people remember and are inspired by Sherry's passionate advocacy.

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

Meat, Dairy, Psychology, Law, Economics

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

Monday, August 29, 2022

Losing Scooter

by Sherry F. Colb

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


Losing Scooter

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

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

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

Thursday, August 25, 2022

Sherry Colb

by Michael C. Dorf

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

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

Wednesday, August 24, 2022

Vasectomies For All (guest post by Antonio Haynes)

by Antonio Haynes

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

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

Tuesday, August 23, 2022

When Winning Elections Is Not Enough, What Then?

by Neil H. Buchanan

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

Instead, the response by the nation's top Democrats was to fall back on tired platitudes once again, telling people that "we just need to win more elections."  That that is tautologically true does not make it helpful, and Pelosi's "now you have to give us even more money to win even more elections" seemed especially tone-deaf (at best), with Democrats having won in 2020.  Yes, if Democrats had been able to pick up some more Senate seats in 2018 and 2020, that might have mattered -- although maybe not, given that there are probably several more Manchin/Sinema types in the wings, willing to say that "the Senate's traditions are important" -- even more important, apparently, than democracy itself.
But it would be wrong to say that these Democratic leaders were merely re-litigating the past.  They were, more likely, saying what small-d democrats are supposed to say: If you don't like the results, you try harder next time and convince more people to vote for you.  The problem is that that is no longer a reliable strategy, for two reasons, one familiar and one less so.

Monday, August 22, 2022

Nonidentity Redux and a Comment on Animal Equality

 by Michael C. Dorf

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

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

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

Friday, August 19, 2022

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

 By Eric Segall

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

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

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

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

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

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

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

Thursday, August 18, 2022

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

by Neil H. Buchanan

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

The Winner's Curse in an Autocratic Power Grab

by Neil H. Buchanan

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

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

Wednesday, August 17, 2022

Pork, Abortion Pills, and Constitutional Methodology

 by Michael C. Dorf

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

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

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

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

Tuesday, August 16, 2022

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

by Neil H. Buchanan

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

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

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

Monday, August 15, 2022

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

 By Eric Segall

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

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

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

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

Friday, August 12, 2022

The Search Warrant Freakout is Bad for Everyone, Including Republicans

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

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

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

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

Thursday, August 11, 2022

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

by Michael C. Dorf

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

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

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

Wednesday, August 10, 2022

What the End of Democracy Looks Like in Real Life

by Neil H. Buchanan

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

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

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

Tuesday, August 09, 2022

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

 By Eric Segall

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

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

Monday, August 08, 2022

The DCCC's Dangerous and Dirty Midterms Gamble

by Michael C. Dorf

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

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

Friday, August 05, 2022

Please Stop Talking About the Equal Rights Amendment

 by Sherry F. Colb

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

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

Thursday, August 04, 2022

Will Technology Make Workers Obsolete or Merely More Miserable?

by Neil H. Buchanan

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

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

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

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

Wednesday, August 03, 2022

Will Fixing the Electoral Count Act Avert Disaster?

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

Fortunately, that coup attempt failed -- barely -- and the ECA's many holes did not result in a constitutional crisis and a collapse of the American experiment.  Having only narrowly avoided that fate, people of good will are now trying to clarify and tighten the statutory language to make it even more clear how the certifying, challenging, and counting of electoral votes must proceed.  Eastman was completely wrong, even under the terms of the current ECA, but clarifying the governing law of elections is surely a good idea.
The proposed replacement, the Electoral Count Reform Act (ECRA), is being debated and potentially improved as Congress considers how to proceed.  Both Professor Dorf (here) and I (here) have argued that the ECRA has much to commend it, but we have also suggested that it has flaws (and that it might not even pass).  On balance, I ended up arguing (here) that as currently written, it might actually make matters worse.
Happily, The Washington Post's op-ed page on Monday featured a new piece by Laurence Tribe, Erwin Chemerinsky, and Dennis Aftergut, "The Electoral Count Act must be fixed. A new proposal doesn’t go far enough." in which they point the way toward making the new law worth passing.

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

Tuesday, August 02, 2022

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

 By Eric Segall

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

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

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

Monday, August 01, 2022

Liars in Robes

by Sherry F. Colb

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

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