What is Justice Breyer Doing?

 by Michael C. Dorf

Justice Breyer has been hitting the talk-show circuit lately, making two notable claims: (1) that he doesn't intend to die while on the Court; and (2) that the Supreme Court isn't political. Both claims emphasize what he wrote in his new book, The Authority of the Court and the Peril of Politics, which he has been assiduously promoting. It's not clear which claim is more dangerous.

The obvious peril from claim (1) is that Justice Breyer--like every other human being on Earth--has limited control over the timing of his passing. In an interview with the NY Times last month, Breyer at least had sufficient sense to recognize that his intention not to die while serving on the Court was ultimately a mere "hope." Speaking of which, one hopes that Justice Breyer has decided but not announced that he will retire no later than the end of the coming Term, which will ensure that a Democrat appoints his successor but only if none of the Democratic senators in states with Republican governors dies in the interim. Still, Justice Breyer's discussion of the multi-factor balancing test he will use to time his retirement raises the distinct possibility that he has no short- or medium-term plan to retire, raising the possibility that he could leave the Court (one way or another) at a point when either Republicans in the Senate might block a Democratic president's nominee or a Republican president would name his successor.

So much for claim (1). Claim (2)--that the Court isn't a political body--echos recent statements by Justices Thomas and Barrett, as well as the sort of pablum that nominees to the Court spoon to the Senate and the public at their confirmation hearings. Most famously, Chief Justice Roberts, as a nominee, described the job of judging as simply calling balls and strikes. More prosaically, Justice Barrett recently honored Mitch McConnell by declaring that she and her colleagues cleared the lowest of all possible bars: that they aren't "partisan hacks." Justice Breyer's repetition of a version of this talking point risks confusing the public because it trades on a slippage among different meanings of "political."

The End of a Long Week

by Neil H. Buchanan

Dear Dorf on Law readers: This has been a very unusual week, starting with my first international travel of the COVID era, resulting in a 5-hour time difference, jet lag, and the associated disorientation.

Since arriving in Cambridge, I’ve published one Dorf on Law piece, an unscheduled Verdict column, and a guest op-ed in The Hill.

And for those who just can’t get enough Buchanan, an article on the debt ceiling in Congressional Quarterly’s Roll Call includes some of my choice words.

All of which is a long and self-important way of saying that I have no additional content for Dorf on Law today.  It’s time for some warm, flat beer.

Have a great weekend!

An Arbitrary Line's Arbitrariness is a Feature, Not a Bug (Mississippi Abortion Case Edition)

 by Michael C. Dorf

On December 1, the Supreme Court will hear oral argument in Dobbs v. Jackson Women's Health Organization, in which Mississippi asks for either an outright overruling or serious curtailing of the cases recognizing a constitutional right to abortion. On Monday of this week, amicus briefs in support of respondent were due. Just as it received a boatload of amicus briefs decrying abortion in July, so on Monday the Court received a whole lot of briefs urging the justices to affirm the lower court decision invalidating Mississippi's ban on most abortions after (what it defines as) 15 weeks' gestational age. Today I'll take as my point of departure the amicus brief with which I'm most familiar--one filed on behalf of me and 12 other constitutional law scholars (Lee Bollinger, Erwin Chemerinsky, Sherry Colb, Dan Farber, Joanna Grossman, Leah Litman, Martha Minow, Jane Schacter, Suzanna Sherry, Geof Stone, David Strauss, and Larry Tribe).

The core of our argument goes like this: Mississippi is plainly wrong in its contention that the abortion right has no connection to other rights the Court has recognized, and therefore repudiation of the right on that basis would jeopardize all unenumerated constitutional rights, including to marriage, against sterilization, and against forced abortions. Likewise, the Court's backup argument that the viability line should be abandoned as unprincipled and unworkable is wrong; there are sound reasons in principle for the line as an original matter, which is further supported by stare decisis.

Although we argue forcefully that viability is not an arbitrary line, here I want to argue that even if it were arbitrary, that would not be a reason to abandon it. Our brief doesn't make this argument exactly, but it gestures in the same direction when we say this:

Mississippi’s unfounded complaints about arbitrariness of the viability line ring hollow considering the lawlessness and confusion that would follow overturning Roe and Casey, as the State implores this Court to do. Such a reversal would lead to inconsistent directives and would leave women and indeed, the general public, in the dark about the state of the law . . . .

Now I'll elaborate.

Trump's Flailing Coup Attempts and the Fire Hose of Constitutional Disasters

by Neil H. Buchanan

It appears that I will be part of an odd footnote to an odd footnote to history.  As Professor Dorf described in yesterday's column here, one of Donald Trump's legion of Giuliani-like lawyers apparently wrote a memo shortly before the January 6 insurrection, detailing a legal strategy that (in Trumpists' minds, anyway) would have allowed them to keep Trump in office after January 20.

 

The one and only citation in that memo was to a September 20, 2020 Verdict column that I co-authored with Professors Dorf and Laurence Tribe, meaning that our names are embedded in a seditious legal fiction that will surely end up in the national archives.  Yay us?  Posterity will never forget!

Professor Dorf has already explained the lowlights and eviscerated the pathetic legal analysis that Trump's hack (and now-former law professor) cooked up, so there is no need to get back into that here.  Instead, I want to explain the one thing that the memo's author managed to get right about our column (in which we debunked a myth about the Twelfth Amendment), even though his citation to it was purely for the purpose of saying, "Hey guys, as a bonus, we can poke Larry Tribe with a sharp stick!"

After exploring why everyone seems to misunderstand the Twelfth Amendment, I will broaden the discussion to note in wonderment the sheer volume of previously unexplored constitutional gaps that have been exposed by the Trump/Republican radicalization of the past several years.  We now find ourselves drenched in increasingly insane constitutional and legal absurdities.

 

How An Essay by Neil Buchanan, Laurence Tribe, and Me Figured in Trump's Effort to Destroy the Republic

by Michael C. Dorf

You really can't make this stuff up. Here's the latest revelation from the forthcoming Peril by Bob Woodward and Robert Costa: In the days leading up to January 6, Donald Trump enlisted now-former-Chapman-law-professor John Eastman to try to persuade Mike Pence that as Vice President he had the unilateral authority to throw out the electoral votes of enough states to give Trump the lead and then declare him the winner of the election. CNN reports that Woodward and Costa retell details of a January 4 Oval Office meeting in which Trump said to Pence: "You really need to listen to John [Eastman]. He's a respected constitutional scholar. Hear him out." Fortunately, Pence did not listen to Eastman, instead receiving sound and sober advice from his fellow Hoosier VP Dan Quayle, who, for all his shortcomings, is apparently a hero of the American republic.

Meanwhile, CNN has also released a two-page memo supposedly written by Eastman and purportedly shopped by the Trumpistas to Pence. Titled "January 6 Scenario," the memo contains a number of fantastic assertions, including the contention that Pence should announce the existence of "ongoing disputes" in seven states, despite the fact that not a single state sent more than one official slate of electors--even though a minority of individual Trump-loyal state legislators in various states purported to certify Trump's electors. I would go into more detail about the memo's absurd contentions, but it's short enough that readers can examine it themselves.

I'll focus the balance of this brief essay on the one and only external source cited in the memo (purportedly) from Eastman: a September 30, 2020 essay on Verdict by Professor Neil Buchanan, Professor Laurence Tribe, and me. Although the essay lists us authors alphabetically, and thus has Professor Tribe last, the memo refers to it as the work of Tribe alone, no doubt because Professor Tribe is a bête noire for the right, the epitome of a liberal Democrat. Eastman (if he indeed authored the memo, which lists no author) probably thought that by citing Tribe he would hoist Joe Biden, Nancy Pelosi, and Chuck Schumer by their own petards because, you know, no Democrat could possibly take a different position from Tribe on anything. That's absurd, of course, but no more absurd than the use the memo purports to make of our essay.

Civility and Discourse in Legal Education and Social Media

 By Eric Segall

Last week I debated affirmative action with UCLA Law Professor Richard Sander in front of GSU students (virtually) and was asked by my faculty, along with Professor Anthony Kreis, to prepare a presentation on the pros and cons of twitter for furthering professional development. These events caused me to reflect on when and where civility is important and how social media fits into that question. 

In an excellent and thought-provoking post on this blog last Monday, Professor Sherry Colb explained what happens when people abuse the civility norm or invoke it hypocritically.  I'll have a little more to say about her chief example below, but for the most part I want to talk in this post about the value of the norm when it's not being abused. I have come to the conclusions that civility is almost always essential in public discourse, that finding common ground with folks you disagree with makes for better, more high minded discussions and debates, and that it is quite difficult to achieve civility and common ground on social media, which is a major problem inside and outside of legal education.

Speech and Role Morality

 by Michael C. Dorf

On Monday, Professor Colb reported on a recent discussion hosted by Cornell Law School featuring Professors Cornel West and Robbie George. In answering some comments by one reader, I offered some further support for the main essay's criticism of the analogy Professor George drew between private attorney general statutes in the environmental and other contexts, on one hand, and the deputizing of private parties by SB8, the Texas abortion statute. In a future essay, I might elaborate further on my somewhat cryptic comments and also dive deeper into the legitimate and illegitimate grounds that lawmakers have for enlisting private parties in enforcing public (and other) obligations. In today's essay, however, I want to turn to another issue that arose during the course of the discussion, which ended up as a missed opportunity.

My colleague Sheri Johnson as moderator asked the panelists--who celebrated one another as icons of intellectual freedom--whether they thought Harvard had acted improperly when it failed to renew Ronald Sullivan as Head of Winthrop House (one of the undergraduate residential colleges) in light of complaints by students, especially women, about Sullivan's work at the time as a criminal defense lawyer representing Harvey Weinstein. Professors West and George both condemned Harvard College for the action, while praising Harvard Law School, where Sullivan is a clinical law professor, for subjecting him to no penalty.

I agree that the law school had no ground for subjecting Professor Sullivan to any sort of penalty, but despite Professor George's introductory remarks about the importance of understanding the position of those with whom you disagree, I was struck his failure and the failure of Professor West to grasp, much less persuasively refute the objection.

That Sense of Relief from California’s Recall Comes Five Years Too Late

[Note to readers: Today's Verdict column, "Why Do We Continue to Use Loaded Words Even When We Know that They Have No Meaning?" represents my latest attempt to channel George Orwell.  I always fall short, of course, but I hope that the column might nonetheless be of some interest.  In any event, the column below addresses a completely different topic.]

 

 

by Neil H. Buchanan

 

Earlier this month, I again found myself describing various extremes to which the wholly autocratic Republican Party might yet resort.  In that column, the I-can't-believe-it's-even-possible-to-be-saying-this possibility du jour was the creation of new U.S. states and the elimination of existing states, in "what would amount to a gerrymandering of the Senate."

 

Was that scenario "out there"?  Sure, but so was the January 6 insurrection -- not to mention Republicans' subsequent efforts to ignore, justify, and shift blame for that horrible day.  I ended that column with this:

Maybe it will not be worth it for Republicans to carry out all of the crazy ideas that I have laid out here.  But these extremists certainly do not lack energy.  They are, for example, trying to recall not just California's governor but dozens of other Democrats who won legitimate elections.  Why not pull out all the stops?

I have not checked whether any of the other sixty recalls were successful, but obviously the big news this week is that the main event -- the plan to take out Governor Gavin Newsom and replace him with a talk show host who is at least as bad as Donald Trump -- failed spectacularly.  As in an epic blowout, almost a 2-to-1 win, the kind of thing that we do not expect to see even in a deep blue state.  (Or in red states, either.  Texas, for all of its longstanding voter suppression, only went for Trump by five and a half points last year.)

Is it time to celebrate?  Yes, up to a point.  Here, I will offer a few observations on where we are now, in light of what happened in California.  Unsurprisingly, most of the news is still bad, especially compared to what could have happened in earlier elections.