Does "Okay Boomer" Create a Hostile Work Environment Based on Age?

by Michael C. Dorf

During Wednesday's oral argument in Babb v. Wilkie, Chief Justice Roberts elicited laughter from the courtroom audience when he asked Roman Martinez, the lawyer for petitioner Noris Babb, whether one recitation of the phrase "okay Boomer" directed at an older person in the course of a weeks-long employment decision process would be actionable under the Age Discrimination in Employment Act (ADEA). There ensued a back-and-forth in which the Chief Justice sounded incredulous: "So calling somebody a 'boomer' and considering them for a position would be actionable?," he asked. Martinez did not directly answer the question, instead settling eventually on a reformulation of his core position in the case: "if the fact finder were to conclude that that statement . . . was one of the factors going into" the employment decision, then yes, he said, liability would follow.

At issue in Babb is whether a plaintiff alleging age discrimination under the federal sector provision of the ADEA must show that consideration of the plaintiff's age was a but-for cause of an adverse employment decision (as the Solicitor General argues), or whether it suffices for the plaintiff to show that age was a "motivating factor," as Babb's attorneys argue, drawing on a test taken from the Title VII context. The underlying statutory and case-law context is complex. The outcome in the case may turn on how the specific statutory language on which Babb relies--"free from any discrimination based on age"--interacts with the constitutional requirement of equal protection, other anti-discrimination provisions Congress has enacted, and the case law construing them. Readers looking for a good summary may wish to consult this explainer by attorney Dan Kohrman. Although Kohrman works for AARP, on whose behalf he submitted an amicus brief in support of petitioner Babb, the explainer is fairly neutral.

I won't directly address the merits of Babb. Instead, I want to linger over the Chief Justice's question and the unspoken premise that he and those in the audience who laughed at his "okay Boomer" line share.

What Effect Do the Non-Debates Have on a Political System that is Near Death?

Note to readers: My new Verdict column, "The Intra-Party Fight Among the Democratic Candidates Is Necessary and Healthy," was published this morning.  My column here addresses a related but separate set of issues regarding the Democratic presidential nominating process.


Neil H. Buchanan

Apparently, at least to read some of the pundits on the op-ed page of The New York Times, "the women" either won the most recent Democratic non-debate or at least had some good moments.  Times columnist Frank Bruni, who has carved out a career as that newspaper's almost deliberately uninteresting liberalish lightweight, titled his column "Warren and Klobuchar Teach the Boys a Lesson."  Gail Collins, who is decidedly more interesting than Bruni (when not making offensively lighthearted jokes about Mitt Romney's former family dog), wrote about "Some Wins for the Women."

As a feminist (although I concede that not all versions of feminism consider it possible for men to be feminists at all), this ought to be good news to me.  And it is, I guess.  No matter how low my opinion is of any particular source, those two authors have large readerships, and it is good that this is apparently where we were led by the whole contrived blowup over whether Bernie Sanders said that a woman cannot be elected president or instead said/meant something more nuanced.  As someone who has endorsed Elizabeth Warren for president, I take this as a pleasant surprise.

Why, then, do I so often wish that they would stop staging these events?  And is my reaction to the non-debates actually about the events themselves, or is there something more deeply dysfunctional about the whole politico-media complex at work?

Is an iPhone Backdoor Key Really More Dangerous than Other Sensitive Information?

by Michael C. Dorf

Nearly four years ago, the government sought to compel Apple to provide assistance in breaking the encryption of an iPhone. Apple resisted on legal and policy grounds. I analyzed Apple's legal argument at the time and concluded based on a SCOTUS precedent construing the All Writs Act that Apple would probably lose. I did not at the time address Apple's policy argument. I wrote:

Apple argues that orders such as this--that Apple "hack" one of its customers' phones--will, in the long run, do more harm than good. Apple and its various defenders across the tech and civil liberties world argue that a technology developed for the laudable purpose of breaking encryption on a terrorist's phone could leak into the hands of hackers and other bad actors (including other terrorists). In other words, Apple is not simply saying that privacy should prevail over security (although it is certainly saying that pretty loudly), but also that this sort of order would undermine security.

The 2016 impasse between Apple and the US government was obviated when the government cracked the security of the iPhone in question using the assistance of a third-party firm, but since then Apple has improved the iPhone's security, so the government is once again seeking Apple's aid. Apple has apparently provided iCloud backup material but once again resists creating a backdoor key for its phone on the ground that it could fall into the wrong hands.

When discussing the matter in 2016, I confessed that I did not have "a well-informed view about the merits of" the privacy policy question. I still don't, but that won't prevent me from offering a thought about the core risk here. The thought--which I'll briefly elaborate below--is that the risks posed by Apple's cooperation here do not differ in kind from other risks that sensitive information might be lost or stolen.

Possible Paths to Constitutional Redemption

by Neil H. Buchanan

For the past few years, I have been relentlessly -- some might say obsessively -- sounding the alarm about Donald Trump's threat to the rule of law.  Although many people agree (and how could they not?) that he has no respect for the Constitution or any other sources of law, there has been much more resistance to my prediction that Trump will refuse to accept the results of the 2020 election when he loses.  That refusal, to be clear, will take the form of Trump simply declaring himself the winner and Republicans agreeing with him and allowing the coup to happen.

Again, frequent readers of my columns know that I have returned to this theme many times.  (See, e.g., here.)  I have never denied that this is an extreme prediction, but sometimes the most awful outcome is also the most likely.  In any case, now having made that argument many times in many different ways, my resolution for 2020 is to try to describe how the future might play out given that Trump and the Republicans show ever decreasing signs of caring about anything other than his remaining in the White House.  What might happen to Democrats, public employees, schools, women, academia, the environment, racial and ethnic minorities, workers, and so on, in a post-constitutional world?

Those are the subjects of future columns.  But perhaps most importantly, it is useful to think about how we might eventually come back from this terrifying turn in American and world history.

A friend of mine recently suggested that the only hope for constitutional redemption would be for Trump to win (fairly) in 2020 and then succumb to ill health almost immediately thereafter.  Only then, she says, might there be a possibility of rebirth.  Below, I will explain my friend's highly plausible argument and then explain why I think that it does not quite get at the depth of the problem that Trump and the current Republican Party pose to the world.

Supreme Overreaching: The Justices Should Return Gun Control, Affirmative Action, and Abortion to the States

By Eric Segall

President Trump successfully made the Supreme Court an important election year issue in 2016, and he is likely to do so again in 2020. This strategy works because for a long time the Justices have improperly placed themselves in the middle of many of our most important political, social, and cultural disputes. But elections shouldn’t be about judges, and courts shouldn’t be this important. 

No, Impeachment Still Does Not Require a Predicate Crime

by Neil H. Buchanan

The impeachment of Donald Trump briefly receded from public discussion, but it is unsurprisingly returning to the spotlight as Mitch McConnell dances his way toward a sham trial and Nancy Pelosi tries to use her leverage to minimize the damage from McConnell's gyrations.

One argument that one would have thought was settled is the claim by Trump backers that the House's two articles of impeachment are illegitimate because they do not describe any crimes.  But, as Professor Dorf put it recently: "Republicans have argued and will continue to argue to the uninformed public that only statutory criminal acts warrant impeachment."

To be clear, when I say that this issue ought to have been deemed "settled," I do not imagine that it is something that Trump's cult would concede.  Just as they and their ideological compatriots in Australia manage to ignore all evidence and reasoning to continue to deny the reality of human-caused climate change, and just as they cling to conspiracy theories about Ukraine and Hunter Biden (as well as other conspiracy theories about Hillary Clinton, voter fraud, and on and on), Republicans are fully capable of repeating again and again "no crime" as if that were somehow relevant.

It is, however, surprising when credentialed academics join in that kind of madness.  Earlier this week, a professor at a top-ranked law school co-authored (with one of his third-year students) an essay on Verdict purporting to prove that in fact "Impeachment of the President Normally Requires a Crime."

As I will discuss below, I have a great deal of sympathy for people who make arguments to challenge a consensus view.   The line between consensus (a valuable meeting of minds) and conventional wisdom (closed-minded groupthink) can be blurry, and in any event, one of the things that academics most assuredly should feel free to do is to make unsettling arguments.

But they have to be good arguments.  Ahem.

Writing Legal and Policy Analysis at an Insane Moment in History

by Neil H. Buchanan

Other than a Dorf on Law "classic" column that ran last Friday, this is my first column of 2020.  I certainly hope that everyone comes into the new year with happy memories from end-of-year celebrations and with confidence that the coming year will see marked improvements in the world.

On that latter point, however, I cannot muster much hope that things are even going to stay the same, much less improve.  And Donald Trump's insane and illegal warmongering and baiting of Iran to start the year -- notwithstanding the happy news that we apparently are not headed into the full-on war that seemed likely only a day or two ago -- certainly eliminated any thought that the world will seem less terrifying than it has since November 8, 2016.

What to do when each day seems certain to present us with terrifying news, and when the press's largely incompetent minute-by-minute coverage of an erratic president and his sycophantic party only serves to embolden them?  Earlier this week, Professor Dorf described his own decision to try to disengage a bit from the insanity of up-to-the-moment news coverage.  He did this not only as a needed mental health strategy but also to give him time to think and write about other topics.  I applaud him for that decision.

Can I do the same?