Thursday, March 30, 2023

Complaints About "Virtue Signaling" Amount to Claims that There Is No Such Thing as Virtue

by Neil H. Buchanan

One of the most obvious strategies that Donald Trump uses is to accuse other people of doing or being exactly what he is doing or being.  He tries to cheat people, so he accuses everyone of trying to cheat him.  He will stop at nothing, so he claims that his opponents will stop at nothing.  He is a racist, so he calls Democrats -- even (especially) non-White Democrats -- racists.  He peddles hatred of all kinds, so he says that everyone else hates him and his supporters.

As in so much else, however, this too is a matter in which Trump is merely acting like Republicans have always acted -- only more shamelessly.  That is, this is yet another way in which Trump is not a break from the Republican Party but merely its most noxious logical next step.  He lacks almost all of the restraints and minimal niceties that have characterized the rest of his party in the post-Civil Rights era, because he does not bother with cover stories, whereas Republicans spent decades perfecting their feints, nods, and winks with terms like "urban" and "thugs" and "strapping young buck" (turning "welfare" into code for "giveaway to lazy minorities"), and so on.

Republicans (especially as the former Southern reactionary Democrats moved en masse to become Republicans in the 1980's and 1990's) have very much been in the business of projection as a political strategy.  In my Dorf on Law column on Tuesday of this week, I referred to their adolescent tendency to say, in essence, "I know you are, but what am I?!"  This is more than merely trying to get ahead of their opponents, however.  They seem simply incapable of believing that anyone can be a good person, so rather than trying to be less bad, they puff up their chests and say, "What, you think you're better than me?"  Despite its toxic effects, thinking about this can be somewhat amusing.

Wednesday, March 29, 2023

Our (Buchanan's & Dorf's) New Paper: "Justice Delayed: Government Officials' Authority to Wind Down Constitutional Violations"

by Neil H. Buchanan & Michael C. Dorf 

In addition to our individual and joint writing for this blog, on Verdict, and occasionally elsewhere (e.g., here), over the last decade-plus, we have published half a dozen works of co-authored scholarship that aim at a more academic audience. Those papers address topics that overlap with our respective expertises in economics and constitutional law. We are very pleased to announce our latest scholarly collaboration, which will appear in its final form later this year in the Boston University Law Review, but is available in a preliminary version now: Justice Delayed: Government Officials' Authority to Wind Down Constitutional Violations. Here's the abstract:

Upon finding that a government program is unconstitutional, courts in the United States sometimes allow executive officials a grace period to wind it down rather than insisting on its immediate cessation. Courts likewise occasionally afford a legislature a grace period to repeal an unconstitutional law. Yet no one has even attempted to explain the source of authority for allowing ongoing constitutional violations or to prescribe the limits on permissible compliance delays. Until now. 

Judicial toleration of a continuing constitutional violation can be conceptualized as an exercise of the equitable discretion to withhold injunctive relief, but that rationale does not justify the practice of executive officials and legislatures phasing out rather than immediately ceasing their own violations without judicial intervention. The authority for that practice inheres in the merely prima facie nature of the obligations law imposes. Where immediate compliance would risk disaster, government actors, no less than individuals, act justifiably (even if technically illegally) by decelerating gradually rather than slamming on the brakes. 

Building on principles some of which are implicit in extant case law, this Article proposes three limits. First, wind-down authority exists only where immediate compliance would lead to extreme harms that clearly and overwhelmingly outweigh the harms of non-compliance; mere inconvenience or expense does not suffice. Second, the duration of any compliance delay should be specified in advance and minimized. Third, failure to wind down a violation in the prescribed time should be excused only following good-faith efforts; even then, in general at most one extension should be allowed before courts impose sanctions for non-compliance. These limits will deter the kind of recalcitrance associated with massive resistance to desegregation that the Supreme Court invited with the “all deliberate speed” formulation of Brown v. Bd. of Educ. II (1955).

The legitimacy of wind-down authority also implies power to initiate a constitutional violation in extraordinary circumstances. Thus, for example, should Congress fail to raise the debt ceiling before government obligations outstrip revenue, the President need not exhaust technically legal but disastrous options (such as selling national parks to real estate developers at fire sale prices) before taking unconstitutional measures (such as borrowing in excess of the debt ceiling) to mitigate the harm.

Tuesday, March 28, 2023

Toxic Disingenousness and the "I Know You Are, But What Am I?!" Response

by Neil H. Buchanan

In three recent columns, I examined American conservatives' recently intensified bullying of weak and vulnerable people.  At one point, I wrote that "toxic masculinity explains a great deal of the actions and views of today's Republican Party."  The simplicity of that conclusion honestly surprised me -- as I put it  there: "When I finished writing the first of those columns, I thought: 'Wait, is that really all there is?  Did I honestly just rediscover that toxic masculinity is toxic, and that it has poisoned the American (and global) right?'" -- but it would have been dishonest to avoid that conclusion merely because it was so obvious in retrospect.

After the third of those columns ran, I received an email with the subject line "Toxic Masculinity" that began with a friendly "Hello Professor Buchanan" and jauntily continued (in its entirety):

Just a note about your recent posts. Certainly toxic masculinity is a real phenomenon, and it certainly causes real problems. But it has always struck me as a sort of toxic-masculinity the tendency for some men to, with a peculiar righteous zeal, invoke toxic masculinity in diagnosing social problems. As if doing so makes them more evolved and enlightened: the moral preening of the neo-alpha, the “manly men” of coffee shops and feminist circles. There’s something parasitic and grossly indulgent about this. I’m not claiming that this is what you’re doing, but, while reading your posts, I couldn’t help but think about how easy it is to cross the line from a constructive invocation of toxic masculinity to something more vain and parasitic.

Thanks for your time,

Let me be clear that I absolutely, completely believe that this email was written in good faith and not at all disingenuously, so much so that I will refer to the person who sent it so me as GoodFaithEmailer.  After all, he led off by agreeing that toxic masculinity is a real thing (before proceeding directly to the inevitable "But"), and after laying out his critiques, he helpfully added with all the sincerity in the world that he was "not claiming that this is what" I was doing.  Which settles the matter, because he wrote that he was only saying that "reading your posts" made him think those thoughts.  So it is not I who was showing an unseemly form of peculiar righteous zeal.  It is only other people who would write what I wrote that might be described in that way.

GoodFaithEmailer signed off with his first name followed by his full name, along with his professional return address and credentials.  This was helpful, because otherwise I would have assumed that the email had been sent by an especially precious, self-impressed 10th Grader with an overused thesaurus.  I am not saying that that is true of GoodFaithEmailer, but rather that his email could not help but make a person think that it was written by a peculiar kind of adolescent who panics when called out for his immaturity.  Luckily, GoodFaithEmailer did not say what he said about me, and what I am saying here is not about him.  We are all just friends discussing why other people who call out toxic masculinity are or are not neo-alphas.

So let us consider the content of that not-at-all disingenuous email.  Is calling out toxic masculinity merely another form of toxic masculinity?  Are toxic masculinists rubber, while I'm glue, so whatever I say bounces off them and ... well, you get the idea?  Oh wait, I should again be careful to say that I am not glue, only that people who argue what I have argued can easily cross a line and become glue.  Again, I believe it when someone says that they are not saying anything about me, and I expect everyone to believe that I believe it.

OK, now we can ask about the substance, such as it is, of the concern trolling expressed in that email toward people who are most assuredly not me.

Monday, March 27, 2023

The Difference Between a Bad Joke and Not a Joke

by Michael C. Dorf

Last week's oral argument in Jack Daniel’s Properties, Inc. v. VIP Prods., LLC was difficult to handicap. On one hand, various Justices seemed skeptical of the argument for plaintiff Jack Daniel's that the Court should completely reject the test used by the Ninth Circuit and originally developed by the Second Circuit--under which the First Amendment imposes a threshold requirement for plaintiffs asserting that expressive works infringe trademarks. On the other hand, there was uncertainty about how to integrate that test--or any other test that gives ample protection for free speech--with the statutory requirements of the Lanham Act. I remain of the view I expressed in my Verdict column in advance of the argument: parodists should be given wide latitude and thus I'm sympathetic to the defendant maker of the poop-themed dog toy "Bad Spaniels."

Rather than parse the oral argument closely, however, I want to devote today's essay to something Justice Kagan said in colloquy with the lawyer for the respondent/defendant VIP. Some of the Justices shared my skepticism that anybody would actually think that Jack Daniel's was behind the Bad Spaniels dog toy. Justice Alito was especially forceful in painting a portrait of the hypothetical meeting of Jack Daniel's executives at which they would have approved the poop jokes (although Justice Alito somehow seemed to think that the Bad Spaniels toy jokes about urine, despite the prominent "Old No. 2" on the label. But I digress.)

Justice Kagan, by contrast, seemed to think that Jack Daniel's has a strong case, and not just because of the survey data showing some actual confusion. She asked "what is the parody here? . . . maybe I just have no sense of humor but . . . what's the parody?" The lawyer for VIP answered that "[the] parody is multifold," but the only dimension that he ended up exploring with Justice Kagan was his claim that Bad Spaniels pokes fun at Jack Daniel's for taking itself too seriously. Justice Kagan didn't think this was a plausible answer given that VIP's other dog toys deploy puns based on products from a whole range of companies. She listed "Doggie Walker, Dos Perros, Smella R Paw, Canine Cola, [and] Mountain Drool," expressing incredulity that all of the parodied beverage makers take themselves too seriously.

That's fair enough, I suppose, but I think at bottom Justice Kagan was confusing two categories: jokes that she doesn't find funny and not-jokes at all. That's a distinction that could have significance in a number of contexts.

Friday, March 24, 2023

Fake Masculinity, Real Racism, or Both

by Neil H. Buchanan

Is the current version of the conservative movement all about fake masculinity or real racism?  Obviously, there is plenty of evidence that both problems exist in abundance, and there is no reason not to answer with a rhetorical question: Why not both?  Indeed, the two would seem to reinforce each other.  Even so, it is worth trying to think about them separately, which I will do here.  The answer either way will be ugly, so there can be no happy ending to today's column.

Thursday, March 23, 2023

Macho Blowhards and a Certain Political Movement

by Neil H. Buchanan

Earlier this month, a rather amusing exchange occurred during a committee hearing in the US Senate.  This entertaining video clip is only four and a half minutes long and is definitely worth viewing, but I offer here a transcript of the key exchange to set the stage for today's column:

Senator Markwayne Mullin: Union pipe-fitters decided they were gonna come after us.  They would show up at my house!  They'd be leaning up against my trucks.  [Sneering]  I'm not afraid of a physical confrontation.  Fact, sometimes I look forward to it.  When that didn't work, they started picketing our job sites, saying 'Shame on Mullin.'  'Shame on Mullin'!  For what?  For what?  Because we were payin' higher wages?  Because we had better benefits, and we wasn't requirin' them to pay your guys's exhorbitant salaries?  You talk about CEO's that're makin' all this money?  And what do you make, Mr. O'Brien?

[Mullin then talks over the witness and refuses to let him answer, accusing him of, among other things, "sucking the paycheck out of somebody else."]

Teamsters President Sean O'Brien: You're out of line, man.

Mullin: Don't tell me I'm out of line.  [crosstalk]  

O'Brien: Oh, you're a tough guy, yeah.  You want to tell me to shut my mouth?  Yeah.  [smirks]  Tough guy, 'I'm not afraid of physical ...'  [scoffs]

Now, the least important thing to note here is that the former businessman seems genuinely exercised about the idea that unions picketed ... job sites.  What?  But the senator's point was clearly not to say anything coherent but appear to be, as O'Brien put it with unconcealed contempt, a tough guy.  A multi-multimillionaire Republican senator, sitting in shirtsleeves to show what a regular not-woke MAGA man he is, yelling in an Oklahoma twang while a union leader retorts in a working-class Boston accent.  Who is tougher?

That is gooooood theater!  And it is hardly an isolated incident.

Wednesday, March 22, 2023

Free Speech on Campus: A Constitutional Void

By Eric Segall

It is rare that a week goes by without some major public controversy involving free speech at a public or private university. In Florida, Governor Ron DeSantis wants to essentially purge public universities of honest discussions of race, diversity, gender, LGBTQ+ issues, and America's past. So far, courts have said no

At Stanford last week, Judge Kyle Duncan was greeted with much hostility, which he seemed to invite, resulting in videos showing him calling Stanford Law students "idiots" and then running off to cry to the media about how he was treated. This incident, widely reported on, has many causes and there's plenty of blame on all sides.

Both public and private universities have controversial hate speech codes that many scholars and judges think are either unconstitutional or bad policy because they go beyond punishing true threats or harassment, while others believe such codes are essential to protect traditionally marginalized groups. 

Off campus online speech by university students has haunted the lower courts, which have reached all kinds of varying and conflicting results. Swirling around all these controversies are under-theorized free speech arguments leading to great constitutional uncertainty.

I have strong free-speech policy views about how colleges and universities should be operated, but this is a blog post about what the first amendment requires, not what policies are best. Even so, my goal is not to present a coherent, worked-out theory of the first amendment on campus. Instead, I want to ask a few hard questions and suggest that the label "academic freedom" does little to clarify many of these disputes. At the end of the day, much more work needs to be done by lawyers, scholars, university officials, and judges to bring much needed coherence to this area of the law. 

Tuesday, March 21, 2023

How Plausible is the Melania Defense?

 by Michael C. Dorf

Despite Donald Trump's incendiary announcement that he will be indicted and arrested today, there is no good reason to think that he has access to any inside information. After all, we are talking about a man who, as President, typically did not read classified briefings prepared specifically for him but spent hours watching cable news. He does not base his pronouncements on reliable sources, much less facts.

Nonetheless, there is good reason to think that Manhattan District Attorney Alvin Bragg's office will secure a grand jury indictment of Trump in the coming days or weeks, even if not in the next few hours. Accordingly, in today's essay I shall preview what I'll somewhat inaccurately call the "Melania defense."

Trump is likely to be charged with falsifying business records by recording as legal fees his reimbursements to fixer Michael Cohen for payments Cohen made to Stormy Daniels as hush money. As Professors Ryan Goodman and Andrew Weissmann note today in a NY Times op-ed, that mischaracterization made Trump's tax documents and campaign filings fraudulent. However, merely falsifying a business record is a misdemeanor in New York. Trump will not be arrested for a misdemeanor. To elevate second-degree/misdemeanor business record falsification to a first-degree/felony charge requires that the DA prove that Trump's "intent to defraud includes an intent to commit another crime or to aid or conceal the commission thereof."

Presumably, the grand jury will indict Trump, if it does, on the ground that he falsely listed the hush-money reimbursement to Cohen as legal fees to conceal the commission of the "[]other crime[s]" to which Cohen pleaded guilty and for which he served time in prison.

As some of Trump's defenders (and even some anti-Trump observers) have noted, there is an obvious line of defense against the felony charge. Trump's lawyers can admit that he deliberately mischaracterized the payments to Cohen as legal fees--and thus that he committed a misdemeanor--but that his intention in doing so was not to cover up any other crimes but to cover up the fact that he had an affair. In this narrative, Trump's intent was that of any cheating husband: to prevent his spouse from learning of his extra-marital sexual relationship.

I hope the term "Melania defense" catches on, even though it's not exactly accurate. If Trump's intention was to prevent his wife from learning of his affair, then that negates the government's case against him. "I was intending to deceive my wife" is not an affirmative defense. That means, among other things, that the DA will have the burden of proving beyond a reasonable doubt that Trump's intent was to cover up another crime.

Monday, March 20, 2023

Raccoon Dogs, Pigs, Birds, Most of Your Diet, and Other Vectors of Zoonotic Disease

by Michael C. Dorf

As Republican politicians continue to push the improbable (but not completely ruled out by the evidence) hypothesis that the COVID-19 pandemic originated in a lab leak (or, in the fever dreams of their conspiracy theorists, as a bioweapon), new evidence has emerged suggesting a specific species as the more likely zoonotic origin: DNA from the (illegal) Wuhan live animal market that has been the focus of the most attention points to raccoon dogs as a possible source. I say "possible" because the evidence is raccoon dog DNA and COVID-19 in samples taken from the live market very early in the pandemic; it's possible that the raccoon dogs were infected after COVID-19 had already begun to spread from some other source, but given that other coronaviruses can spread from raccoon dogs to humans, the raccoon dog hypothesis merited a recent story in The NY Times.

Let's begin with the obvious: raccoon dogs (which are closely related to foxes, wolves, and dogs but not raccoons) are adorable (although definitely not suitable as pets).

At this point in our tale, I expect readers to feel outrage at the fact that some people in China eat raccoon dogs and other cute animals, including the kinds of dogs many people keep as pets. That is outrageous on moral grounds--slaughtering and eating a raccoon dog or a Labrador retriever feels only a step removed from cannibalism. It is also alarming on public health grounds, given the tendency of deadly diseases to jump from the particular sorts of wild animals that some people in China regard as delicacies to humans.

So be outraged. But try not to be selectively outraged.

Friday, March 17, 2023

Childish Manliness and the Anti-Woke Macho Panic

by Neil H. Buchanan

One of the formative moments of my adolescence was when I first heard the (probably apocryphal) story about a commoner who was invited to a special dinner with the queen.  As the story goes, when a finger bowl was placed in front of the nervous guest, he thought it was for drinking and quickly gulped downed the water.  While the assembled royals sneered and tittered, the queen calmly picked up her finger bowl and drank it as well.

That story is so well known that there are endless variations in its telling, but that is precisely because it makes such an important point -- a point that is reflected in other life lessons and aphorisms, including (the needlessly gendered) "a man never stands so tall as when he stoops to help a child," or simply "Don't be a jerk!"  The idea is that growing up and being good involves learning to be part of something larger and caring about -- or at least noticing and minimally respecting -- the humanity of others.

The thoughtful queen in the story understood that the kind, truly noble thing to do was to make her guest feel comfortable, rather than saying, "Oh, you rube!  Here is what it means to be upper crust."  Whoever it was that told me that story in my teen years then shared the lesson to be learned: "There's class, and then there's class!"  Given that I was growing up in the Baby Boom-era of what we would now call toxic masculinity -- a two-word phrase that serves as proof that a well chosen label can be powerfully clarifying -- that was a transformative moment.

Arguably, the US political divide in 2023 amounts to a sorting of people into two camps: those who would have laughed at the queen's guest, and those who would have applauded the queen's kindness.  Kindness is not in fashion on the political right.  More than that, maturity has become a liability.  These people are now all about finding vulnerable groups and kicking down at them, but what is in some sense more fascinating is their panicky refusal even to consider accepting limits in their lives.  In a way, the modern (and I use that term in only one of its meanings) conservative movement's slogan is: "You can't tell me what to do!"

Thursday, March 16, 2023

Is this Blog's Name Problematic? An Agreeably Dissenting View

by Neil H. Buchanan

Does it matter whether the people engaged in something potentially offensive know that they are running the risk of causing offense?  Of course it does, but how completely does lack of intent or knowledge get a person off the hook?  There is no general answer to that question, but Professor Dorf's column yesterday -- "Jack Daniel's, Confusion, and the Problematic Origin Story of this Blog's Name" -- presents an opportunity to explore some nuances through an example in which we have access to an unusually large amount of the relevant facts.

The fundamental issue is whether the punny inspiration for this blog's name -- a series of videos in the 1980's by the comedian Tim Conway, the first of which was titled "Dorf on Golf" -- is potentially offensive enough to suggest that we should change that name.  (Although he only mentions the one video, I should note that there was more than one, with my limited memory dredging up only "Dorf on Tennis" but with the strong sense that there were others.  Yes, I could look it up online.  I didn't.)

Professor Dorf drew what I think is the right conclusion: "I gave the question some thought but elected to keep the name."  My disagreement here is with his analysis of the question of whether there is anything necessarily offensive about the name in the first place.  In Professor Dorf's telling, Conway's original "Dorf on Golf" comedy video can reasonably be described as an effort to get laughs at the expense of people with dwarfism.  Is that accurate?

Before getting there, let us situate the discussion within the culture wars of 2023.  Why?  Because that is where everything is now situated, thanks to Republicans' decision to do nothing but crank up the cultural grievance machine.  It is exhausting, but here we are.

Wednesday, March 15, 2023

Jack Daniel's, Confusion, and the Problematic Origin Story of this Blog's Name

 by Michael C. Dorf

My latest Verdict column previews next week's Supreme Court oral argument in Jack Daniel's Properties v. VIP Products. For those of us who teach and generally write about constitutional law--and thus spend a whole lot of our professional time gritting our teeth at the latest claim by Messrs. Thomas, Alito, et al that the original (and supposedly widely shared) understanding of some vague constitutional term just happens to align perfectly with the Republican Party's ideological agenda in the 21st century--the Jack Daniel's case is a welcome diversion.

At a minimum, the case illustrates that the people who operate Jack Daniel's and/or its corporate overlord Brown-Forman are a bunch of stuffed shirts. Our first clue might have been that the company insists that its booze is "Tennessee whiskey" rather than bourbon. But if there were any doubt, the case now before SCOTUS shows that, despite the company's protestations in its brief, it has no sense of humor. Jack Daniel's sued VIP Products claiming that the latter's poop-themed dog toy parodying a bottle of Jack infringes its trademark. And to be clear, "Bad Spaniels The Old No. 2" is bottle-shaped but not a bottle, contains no whiskey or any other liquid, and, again, is a dog toy.

Tuesday, March 14, 2023

Constitutional Law, Constitutional Litigation, and the Truth About Constitutional Text

By Eric Segall

There are many parts of the United States Constitution that seem unfair, outdated, and have terrible consequences. Article I requires that that there be two senators from every state regardless of population, which means North Dakota and California have the same power in the Senate even though California has 39 million people and North Dakota has roughly 800,000 people. Many Americans would prefer to vote for the President directly rather than through the constitutionally required electoral college. Article V makes amending the Constitution almost impossible--surely a bizarre feature for a document written centuries ago by and for white propertied males alone. And even the prescribed date of January 20th for presidential inauguration in the 20th Amendment is problematic. The two-and-a-half-month transition period allows a lame-duck president to accomplish considerable mischief--including fomenting an insurrection!--but a substantially earlier inauguration date could also create difficulties because the decentralized electoral college process plus post-election litigation mean that it can take a fair bit of time to resolve legal challenges and determine a winner. 

We follow all of those arguably terrible rules and many more because they are perfectly clear, and the American people accept the Constitution as the supreme law of the land. Constitutional litigation, however, is an entirely different matter.  

Monday, March 13, 2023

The Potential Political Consequences if SCOTUS Dismisses the North Carolina "Independent State Legislature" Case

 by Michael C. Dorf

Earlier this month, the Supreme Court issued an order to the parties and the Solicitor General directing them to brief the question whether the Court still has jurisdiction to decide Moore v. Harper, in light of the North Carolina Supreme Court's decision to rehear the case from which Moore is an appeal. Readers may recall that Moore presents the question whether Article I, Section 4 of the Constitution--which assigns to state legislatures the authority to determine the manner of elections for Congress--precludes state court judicial review under the state constitution of political gerrymandering.

The petitioners are Republicans who object to the North Carolina Supreme Court's invalidation of the map drawn by the GOP-controlled legislature and its remand to the trial court to supervise the drawing of (or itself draw) a new map. The Supreme Court heard oral argument in the case in December. As I noted at the time, it was not the finest (nearly three) hour(s) of either the Justices or the advocates. Even so, many observers came away from the argument thinking that the Court was unlikely to adopt the most aggressive version of the "independent state legislature" (ISL) theory advanced by the petitioners.

ISL is a misbegotten and dangerous theory. To see why, readers could do no better than to read the terrific amicus brief by law professors Akhil Amar, Vik Amar, and Steve Calabresi. It makes what I regard as irrefutable arguments based on text, original understanding, structure, and just common sense. One hopes that Professor Calabresi's conservative credentials would also give the brief some added credibility with the Justices who have heretofore flirted with ISL. But the order regarding jurisdiction suggests we won't find out what the Justices think about ISL--at least not this Term. After saying a few words about jurisdiction, I'll speculate about the potential political consequences if SCOTUS dismisses.

Friday, March 10, 2023

Netanyahu's Political Takeover of the Courts

 by Michael C. Dorf

In addition to its hardline policies in other domains, the current far-right coalition government in Israel is rapidly moving to undercut the independence of the nation's courts. The details of the legislation moving forward in the Knesset (Israel's unicameral parliament) under the sponsorship of Simcha Rothman differ somewhat from the version proposed by Justice Minister Yariv Levin. However, bloc voting by members of the parties forming the ruling coalition ensures that once they iron out their differences, some version of the measure will go through--unless Prime Minister Netanyahu judges the political cost too high. Yesterday brought a ray of hope, when Netanyahu seemed to open the door to a compromise proposal by Israel's (mostly ceremonial) President Isaac Herzog, but that's no reason for protesters to ease the pressure.

With the disclaimer that I am not an expert in Israeli politics (or in Israeli law, for that matter), I will say that I am not optimistic about the prospect of derailing or substantially weakening the effort to rein in the courts. For one thing, Netanyahu has a personal interest in undercutting the courts. By changing the composition of the judiciary, he can reduce the likelihood that he will be convicted of the corruption charges pending against him and increase the likelihood that if he is convicted, the result will be reversed on appeal.

Moreover, even setting aside Netanyahu's personal motives, he is under considerable pressure to attack the courts. In order to maintain his power, Netanyahu needs to appease the most extreme right-wing members of his coalition, in somewhat the same way that Kevin McCarthy cannot risk alienating the likes of Marjorie Taylor Greene. Each leader's pragmatic streak is tempered by his political weakness. Even if the long-term interests of the GOP and Likud (not to mention the long-term interests of the U.S. and Israel) counsel moderation, in both countries the imperative of political survival in leadership demands bowing to the extreme right.

Accordingly, I shall assume for the balance of this essay that at least two key elements of the Rothman and Levin plans will become law, even as I hope I'm wrong in that assumption. Those elements are: (1) a change in the means by which Supreme Court Justices are selected from one that, by requiring a super-majority of persons with differing views, ensures political balance on the Court, to a system that effectively gives the ruling coalition in the Knesset the power to name whichever Justices it wishes to name, even in the face of the most strenuous opposition; and (2) effective elimination of the Court's power of judicial review.

After providing a little background, I'll offer some broader thoughts about norms and judicial review.

Thursday, March 09, 2023

The Tightening Grip of Authoritarianism Is Not Limited to Florida

by Neil H. Buchanan

Over the last several years, I have in varying contexts predicted that the US will soon no longer be a constitutional democracy, that we will witness the end of anything resembling the rule of law in this country, and that there seems precious little that we can do to stop any of that from happening.  The most dramatic and direct way for that to happen would have been for Donald Trump to have succeeded in his efforts to supplant the results of his 2020 loss.  At that point, there would no longer have been even the fig leaf of democratic legitimacy, and an unbound Trump would have been -- as he put it to his most devoted followers at a conference a few days ago -- "your retribution."  Meaning, of course, his retribution.

To my surprise and delight, that did not happen in 2020/21 (though only barely).  Even so, the evidence of creeping authoritarianism was all around us, and Republicans' rapid pivot from post-insurrection shock to denialism made it all seem less like creeping on tiptoe (though still creepy) and more like a brisk trot.  We are not yet at a full sprint, but it does seem that the Republicans' strides are getting longer and more confident -- much of it under the cover of culture-war craziness, but with a very consistent goal of establishing one-party rule in the US.

Here on Dorf on Law, I have been noting with some dismay that my current state of residence has seen itself become a laboratory of autocracy.  This includes the Republicans' negating of an extremely popular constitutional amendment that would have re-enfranchised over a million Floridians, the voter intimidation that that negation then allowed, the absurdly extreme gerrymandering that keeps them all in power, the punishing and threatening of private businesses for violating conservative orthodoxy, and too many other heavy-handed moves to list here.

Today, I want to pick up on a few loose ends of this discussion, mostly to add some thoughts and fill in some gaps.  I will then move outside of the boundaries of the Sunshine State, to show that the dictatorial fever is alive and well in other states -- even among Republicans who have otherwise done some unquestionably honorable things amid the recent chaos of American politics.  The trend lines are all moving in the wrong direction, and the slopes are all rising menacingly.

Wednesday, March 08, 2023

Of Bruen, the Second Amendment, and Constitutional Insanity

 By Eric Segall

Last week, I wrote an essay explaining why New York State Rifle & Pistol Ass'n v. Bruendecided last June by the United States Supreme Court, is one of the most radical, anti-originalist, ahistorical, and tragic decisions of my lifetime. Bruen directs judges to perform a text, history and tradition only analysis to Second Amendment cases without any judicial balancing of the government's interest in the challenged law against the importance of the asserted right to "keep and bear arms." As I wrote here, this rejection of judicial balancing of rights against the public good would have been universally rejected by the ratifiers of both the Second and Fourteenth Amendments and the public during both time periods. Bruen is an anti-originalist opinion written by the Court's staunchest originalist Justice- Clarence Thomas. Oh, the irony.

This Friday I head to New Orleans for a symposium on judicial review and democracy where I will argue that Bruen wrongfully elevates judicial review above democracy in dangerous and maybe even fatal ways. In this blog post, I use a recent Fifth Circuit Second Amendment case and its majority and concurring opinions to illustrate many of these problems. Bruen is quite simply a national nightmare.

Tuesday, March 07, 2023

Can Florida Require Bloggers to Register with the State? 'The Crucible' Comes to Academia in 2023

by Neil H. Buchanan

"Florida bill would require bloggers who write about the governor and legislators to register with the state," warns the headline of an NBC news article.  As it happens, I did not come across that article on my own; it was sent to me by one of my nieces, who added a question: "Have you seen this?"  Generally speaking, I assume that my family is only vaguely aware of what I do, so when one of them (who is a novelist, not a news junkie) brings something like this to my attention, I have to assume that it is big news even outside of my siloed world.

And that supposition, in turn, suggests to me that the state legislator who proposed the bill might merely be trolling.  How better to Own the Libs, after all, than to suggest something outrageous to grab attention, watching non-Republicans get their panties in a bunch about possible government censorship?  On the other hand, things that were only recently unimaginable in my current home state are now becoming grim reality, especially in education (at all levels).  Although this proposed law does not target only professors, it certainly is of a piece with the Sunshine State's Republicans' efforts to put pressure on scholars and other policy experts.

I will, therefore, for present purposes take this proposed censorship seriously -- which includes seriously questioning whether the appropriate response is to ridicule it and to play games in response to it.  I think the answer is ultimately that we have to be aware that these guys are not playing around, no matter how absurd such proposals might seem.  But there is some humor to be mined here as well.

Monday, March 06, 2023

Should We Rename the Democratic Party? An Inadvertently Interesting Suggestion From a Trolling Politician

by Michael C. Dorf

Last week, Florida state senator Blaise Ingoglia proposed a bill that would "cancel" the Democratic Party. The "Ultimate Cancel Act" (as the bill itself labels the measure) does not mention any party by name but requires the state's election authorities to "cancel" any "political party, if the party’s platform has previously advocated for, or been in support of, slavery or involuntary servitude." That's a not-at-all-veiled reference to the Democratic Party. Why? Because prior to realignment, the Democratic Party, especially in the South, was the party of slavery and then Jim Crow. Thus, most of the worst white supremacists were Democrats before Nixon's Southern Strategy led them and later racists to make their home in the Republican Party, which, into the 1960s, was still the "Party of Lincoln."

To state the obvious, the bill is absurd. Ingoglia is apparently a longtime critic of "cancel culture"--a somewhat amorphous concept that generally applies to instances of people being publicly shamed or losing employment or other economic opportunities based on having said or done something that many others regard as offensive. Let's grant that some of the incidents that Republicans and Republican-aligned media label as instances of cancel culture involve disproportionate penalties for either innocent mistakes or relatively minor offenses. Even so, the comparison to what Ingoglia's bill would do is inapt.  No one subject to "cancel culture" is literally canceled in the sense of silenced by the government. Perhaps Ingoglia knows that and is only trolling. I had never heard of him before last week, so I don't know whether he is a dimwit or an evil-but-not-entirely-stupid provocateur.

In any event, the bill is unconstitutional. The government cannot, consistent with the First Amendment, prevent private associations and entities (such as the band "The Slants") from obtaining a trademark in a name that others regard as offensive. State registration of a party involves no greater, and probably less, state association with the party's name than does federal granting of a trademark. Political parties are private entities whose names are their speech. Just as no state could decline to register the Republican Party based on its recent and ongoing association with racists and insurrectionists, no state can deny recognition to the Democratic Party based on its 19th-century association with slavery. 

So we can dismiss Ingoglia as a dimwit, a provocateur, or (as the chair of the Democratic Party in Florida called him based on The Ultimate Cancel Act) a would-be "dictator." But if wisdom can come from the mouths of babes, as the proverb says, why not from a Republican troll? Is there a case to be made for re-naming the Democratic Party?

Friday, March 03, 2023

Again, this is Not Our Parents' Republican Party

by Neil H. Buchanan

When now-President Biden was running for the Democratic Party's nomination in 2019 and 2020, he was roundly mocked by people like me for talking about how well he would be able to work with his Republican pals after their inevitable post-Trump "epiphany."

A year or so into his presidency, Biden finally acknowledged reality with a speech in which he emphasized the label "MAGA Republicans," differentiating between the people he used to know and the extremist movement that Republicans have now become.  The not-entirely-rare group of people like Liz Cheney, who have been drummed out of the party that they once defined, are probably who Biden had in mind as non-MAGA Republicans, even though they are not welcome in the Republican Party anymore.

To end the week, I want to use this space to offer a reflection on the theme of how much American conservatives have changed.  In doing so, I will look at how even some of their worst old habits have morphed into something more ridiculous and damaging, while their new obsessions are outright contradictions with some of the conservative movement's supposed core commitments.

Thursday, March 02, 2023

Of New Rules and New Applications of Old Rules

by Michael C. Dorf

My latest Verdict column discusses last week's SCOTUS opinion in Cruz v. Arizona. In a 5-4 opinion for the Court by Justice Sotomayor (joined by the other Democratic appointees plus CJ Roberts and Justice Kavanaugh), the Court held that it had the authority to review and then reversed the Arizona Supreme Court's rejection of John Montenegro Cruz's challenge to his death sentence. The trial judge had failed to inform the sentencing jury that rejection of a death sentence would result in life imprisonment without parole (LWOP). That clearly violated Simmons v. South Carolina. However, the Arizona Supreme Court held that Cruz could not bring a second state post-conviction claim because his case didn't fit a state law exception for when there "has been a significant change in the law that, if applicable to the defendant’s case, would probably overturn the defendant’s judgment or sentence.”

That was quite dubious because Cruz pointed to Lynch v. Arizona--a SCOTUS ruling after Cruz's sentencing that held that the courts of Arizona had no sound basis for their failure to apply Simmons. Not good enough, said the Arizona Supreme Court: Lynch was a change in the application of pre-existing law, not a change in the law.

Justice Sotomayor's opinion says that the distinction between changes in the law and changes in the applications of pre-existing law was inconsistent with the Arizona courts' prior cases. In light of this inconsistency, the state court construction of the procedural rule governing the availability of a second or successive postconviction petition was not an adequate basis for defeating Supreme Court review of the underlying federal question. As I explain in the column, that's fair, but I would have preferred a holding that the distinction between changes in the law and changes in applications of the law would be an unreasonable basis for denying federal rights, even if the Arizona courts applied it consistently.

The column lays out the foregoing argument in greater detail and with more background. Here I want to pivot to discuss the distinction the Arizona Supreme Court drew in wider context. As I'll explain, one can point to a sensible conceptual difference between changes in the law and changes in the law's application, but it's hard to see why this distinction should make a practical difference in most settings.

Wednesday, March 01, 2023

Standing for Gravediggers? A Comment on the SG's Concession in the Student Debt Forgiveness Case and a Coda on the Major Questions Doctrine and Fairness

by Michael C. Dorf

Over the course of two oral arguments and more than three and a half hours yesterday, the Supreme Court considered challenges to the Biden administration's student debt forgiveness program. I have written about these cases before, both on the blog--here and more recently here--and in an essay in The Nation. In today's essay, I'll make a point regarding the oral argument that builds on my previously articulated view that the plaintiffs lack standing. I'll also offer brief observations about two other aspects of the arguments, one involving the major questions doctrine and the other concerning a fairness issue that was raised by Chief Justice Roberts and then pushed by Justice Alito.