Institutional Racism, Affirmative Action, and Judicial Hubris: Part I

 By Eric Segall

The pernicious and negative consequences of centuries of slavery, segregation, and formalized legal racial discrimination are still all around us. As I detailed here, institutional racism pervades our schools, police forces, governmental institutions, neighborhoods, and even our private markets. In my lifetime, just a few blocks from the law school where I teach, a hotel went to the Supreme Court arguing for the right to discriminate against people of color despite a federal statute prohibiting the same. Today, GOP legislatures in well over half the states are trying to deter people of color from voting. Just yesterday, the Court heard oral arguments in such a case. 

Against this backdrop of racism, educational institutions across the country now take account of race when selecting their incoming classes in order to achieve greater educational diversity that benefits people of all races. At the same time, a group called Students for Fair Admissions (SFAA) has been filing lawsuits attempting to prohibit public and private universities from taking race into account at all in their admissions decisions. These suits have challenged the use of affirmative action under the 14th Amendment's Equal Protection Clause as well as a federal statute (Title VI) that bars institutions receiving federal funds (virtually all colleges and universities) from  discriminating on the basis of race.

The Supreme Court will soon have to decide whether it will hear a lawsuit brought by SFAA against Harvard University seeking to end all use of race in university admissions. SFAA lost in the courts below, and last week filed a petition for certiorari seeking to have the Supreme Court reverse those decisions. This case is different from any the Court has heard before because SFAA is alleging racial discrimination against Asians, a traditionally disadvantaged group. But make no mistake, the effects of a ruling that racial considerations are off limits to admissions committees would seriously hurt Blacks and Hispanics and set back the efforts being made by universities nationwide to redress centuries of discrimination against all people of color. SFAA is surely thinking it will find a receptive audience among the six conservative Justices.

I’ll Defend California’s Politics Over Texas’s Any Day

by Neil H. Buchanan

If nothing else, New York Governor Andrew Cuomo's downward spiral should remind everyone that state-level politics can be messy.  As Virginians discovered a few years ago, when the governor, lieutenant governor, and attorney general simultaneously faced assorted scandals, people who look good one day can look bad the next (and sometimes bounce back again later, although I would not bet on that outcome for Cuomo).

Beyond personal scandals, the deeper political structures and cultures in the various states present a different set of questions.  It is not as though states cannot change.  For decades, Maryland was accurately reputed to have an insanely corrupt state government, most famously including former Governor Spiro Agnew's crime-a-palooza that ultimately ended his stint as Richard Nixon's first Vice President.  That reputation no longer fits Maryland today, although there are surely still many problems there.  Illinois has witnessed extensive political problems as well, but there is no guarantee at this point that reforms will take hold there to move it in the right direction.

The two most populous states in the nation present us with a unique comparison.  California has for the past few years solidified its position as the bluest of blue states, whereas Texas -- which has been ruled forever by a deeply conservative political class (first under Southern Democrats, then under converts to the other side like former Senator Phil Gramm, and now under the Trumpiest of Republicans) -- has been the ever-elusive "just about to turn purple and then blue" fantasy of those of us who view demographics as destiny.  Even if Texas ultimately flips, for now its government at all levels is still firmly in the grip of some of the most reactionary conservatives in the United States.

As things currently stand, then, California is run by Democrats and Texas is run by Republicans.  Given that both states have unsolved problems, should we conclude that neither party is capable of solving problems?  No, not at all.  In California, Democrats are trying to solve problems, whereas in Texas, Republicans are denying that problems even exist while doubling down on their own disastrous political agenda.

Federal Judge's Invalidation of the Eviction Moratorium Threatens the Fair Housing Act and More

 by Michael C. Dorf

When I read the headline that a federal district judge had struck down the CDC eviction moratorium, I assumed that the ruling said the moratorium went beyond the authority Congress had delegated to the CDC. I was mistaken. According to the actual ruling of Judge J. Campbell Barker in Terkel v. CDC, even Congress itself lacks the power under the Commerce Clause to enact the moratorium that the CDC adopted by rule.

That decision is not just wrong but potentially dangerously so. As I explain below, its logic threatens federal civil rights legislation. I conclude this essay with a proposal for Congress to circumvent the immediate danger from the moratorium's invalidation. Unfortunately, I do not have a solution to the broader threat to congressional power. 

Rawls at 100: Three Critiques

 by Michael C. Dorf

In an important essay earlier this week, Prof Lawrence Solum marked the occasion of the one hundredth anniversary of the birth of John Rawls and the impending fiftieth anniversary of Rawls's landmark book A Theory of Justice. Prof Solum focuses on the ongoing influence of Rawls, both through his students and otherwise. I recommend it to readers, who might also be interested in an essay I wrote in memory of Rawls on the occasion of his death.

Both Prof Solum and I include some personal recollections. My essay noted that as a student I was lucky enough to study with Rawls--from whom I took a large lecture class on moral and political philosophy, with a heavy focus on the usual suspects: Locke, Hume, Kant, Bentham, Mill, Marx, and then, as I recall, skipping over nearly a century to get to Rawls himself. Rawls was very much interested in counter-arguments, but he did not specifically consider what was then (in the early-to-mid-1980s) widely regarded as the leading challenge to his approach--Robert Nozick's libertarianism as set forth in Anarchy, State, and Utopia. Nozick was a substantially less rigid and more subtle libertarian than the likes of Ayn Rand, and precisely for that reason, any fair-minded attempt to respond to libertarian objections to Rawls's defense of the liberal welfare state should target Nozick's watchman state.

Rawls and those who followed in his footsteps offered responses to the core argument of Anarchy, State, and Utopia, but it's important to understand that even if one thinks those arguments were not successful, it hardly matters for defeating what passes for libertarianism in public debate. On the ground, the sorts of actors who purport to be inspired by libertarian thought either really are relying on Ayn Rand (think of the now-moderate-seeming-by-comparison-to-Trumpers former House Speaker Paul Ryan) or simply using libertarianism as a veneer for crony capitalism (think of Republican elected officials in Texas). Meanwhile, although a fair number of principled libertarians stood against Trump and Trumpism, it is clear that they are no longer a dominant force on the right. The libertarian critique of Rawls remains theoretically significant but not especially significant as a practical matter.

Let us turn then to two other critiques. Each critique can be understood as objecting to the seeming bloodlessness of A Theory of Justice--its claiming to speak from the viewpoint of nowhere, as it were.

Trump's Crimes, and What to Do About Them

by Neil H. Buchanan

 

Donald Trump left office without pardoning himself, surprising many people -- certainly including me.  Or did he actually pardon himself without telling anyone about it (yet)?  Trump's former lawyer Michael Cohen suggested as much shortly after President Biden's inauguration.  Whatever else one thinks about Cohen, he certainly was spot-on when he testified two years ago that Trump would not leave office peacefully.

 

Being right about one thing, however, does not make Cohen a seer.  Did Trump issue a secret "pocket pardon"?  Maybe, but if he did try to pardon himself -- and somehow overcame all of his brazen reality-show instincts by not bragging about it and daring people to stand up to him -- we will not learn about it until either Trump needs an adrenaline rush of news coverage (perhaps at his upcoming CPAC speech?) or he actually is in danger of being indicted for federal crimes and pulls the self-pardon out of his pocket.

Will any federal prosecutor actually try to prosecute Trump?  Had Trump announced a self-pardon on January 19, that would have made federal prosecution both less and more likely.  It would be less likely because any prosecutor would have to take into account the extra hassle and uncertainties of litigating the pardon question as a threshold matter.  It would be more likely, however, because it would give the Justice Department in a post-Trump world a reason to say: "No one can do this."  But as it stands today, the balancing question is between holding an unrepentant serial offender to account and avoiding an inevitably controversial prosecution at a politically volatile time.

That will not be an easy decision, but in the end, federal prosecutors should pursue every case against Trump and his associates that they can win on the merits.  Why is that so clearly the right approach?

Texas Energy Policy and the Incoherence of the Efficiency Concept

by Neil H. Buchanan

At this point, it appears that most homes and businesses in Texas have at long last had their electric power restored.  If any are still without service, they are in the second week of living in 18th Century conditions, which millions upon millions of Texans experienced for many days last week.  And even now, houses with electric power restored do not have running water, with plumbers working day and night to work through waiting lists that run into the thousands (per plumber).

In a column last week, I noted how quickly life becomes truly elemental when the foundations of modern living disappear.  Being thrust into a feral life is jarring, and humans understandably have psychological safety mechanisms that allow us to forget very quickly how awful things felt while we were waiting for normal life to return.  And as I pointed out, even when a power outage is relatively short, the temptation to say that it was "only 10 hours" or "only two days" misses the fact that we cannot know during the events themselves when they will end.  It is similar to a job search that stretches on for months, and after a job offer comes in, downplaying the crippling uncertainty and depression that the person suffered.

We should, therefore, fight the temptation to minimize a crisis that lasted "only" a week or so (but which, again, is still not actually over for the people without running water).  The people in Texas's government who are to blame will do everything possible to say that the problem is solved and that we should all move on -- just as they have been saying that Trump's "only four hours and a couple of hundred people" insurrection is nothing to dwell on.

As a policy matter, however, the Texas disaster is a perfect moment to reflect on the concepts of regulation, deregulation, the so-called free market, and that ever-elusive concept called Economic Efficiency (cue the triumphant music).  I have argued for years that efficiency is a meaningless concept (see, for example, the article that Professor Dorf and I co-authored that will be published soon in Cornell Law Review), and last week's collapse in the Lone Star State is a perfect illustration of the emptiness of free-market bromides.

Yesterday Appeared to be a Bad Day for Trump and Trumpism at the Supreme Court: SCOTUS Kremlinology Part 3

by Michael C. Dorf

The big news out of the Supreme Court yesterday was the denial of the stay sought by Donald Trump in the NYC grand jury investigation into his finances and related matters. The ruling in its entirety stated: "The application for a stay presented to Justice Breyer and referred to the Court is denied." No dissents or reasons were recorded.

That's not especially unusual. The Supreme Court routinely takes summary actions without explanation. And despite understandable calls for greater transparency on the Court's so-called shadow docket, there is almost certainly some irreducible minimum of work that the Court--like any reasonably complex institution--can and should be permitted to do without giving reasons.

Indeed, we might worry about the opposite problem: In the four cases involving clashes between state public health measures and religious freedom claims since last spring, various Justices arguably said too much, and thereby changed the underlying law governing religious exceptions without full briefing and oral argument.

In any event, watching the Supreme Court is, as I have noted before (here and here) something of an exercise in attempted mind-reading or Kremlinology. For example, an article last week in USA Today quoted three scholars (including me) hypothesizing that the Court is taking a brief breather from hot-button issues in order for the new conservative supermajority to coalesce. The article is sensible, but as I wrote its author after it appeared:

all of the scholars you interviewed had the same basic reaction: seems like they’re going slowly for now/probably won’t last/we’re really just guessing at what’s going on. I might add . . . that there might not even be a there there. That is, we’re acting as though the Court has a plan and we’re trying to infer it as kremlinologists. But the Court is a "they," not an "it," so its/their actions are the vector sum of complex individual decisions that could be at cross purposes with each other.

With that gigantic caveat--that so much of what I say about the Supreme Court is really just guesswork--I'll venture a brief reaction to the financial records decision and a few observations about the Court's denial of cert in the cases from Pennsylvania challenging that state's supreme court's decisions regarding the 2020 presidential election.