Tuesday, January 18, 2022

A New (Read Old) And Improved 14th Amendment? Reviewing Barnett and Bernick's "The Original Meaning of the 14th Amendment"

 By Eric Segall

Imagine writing a 400+ page book titled "The Original Meaning of the Fourteenth Amendment: Its Letter and Spirit," but not discussing in any detail abortion, same-sex marriage, or affirmative action. Professors Randy Barnett and Evan Bernick (Barnett & Bernick) have written such a book, and while some have criticized it for leaving out perhaps the three most controversial public policy and legal disputes centered around the 14th Amendment, I praise the authors for their decision to leave those issues for another day. Given the primary goal of the book, to provide a scholarly account of the 14th Amendment's original meaning, and given their concession that courts today will need to construct doctrines that implement that meaning, which will be underdetermined in many (in my opinion most) cases, it was appropriate for the authors to duck those contentious questions. Accordingly, if you read this book, and you should, don't be disappointed that you won't find all the answers to burning modern disputes that arise under the 14th Amendment. The book has other plans.

Monday, January 17, 2022

Pretext Explains (But Does Not Justify) the SCOTUS Invalidation of the OSHA Vaccine Rule

 by Michael C. Dorf

Two days ago marked what would have been the 93rd birthday of the Rev. Dr. Martin Luther King, Jr. Today is the national holiday designated to commemorate his birth and honor his work. In past years, my co-bloggers and I have sometimes taken the occasion of MLK Day to reflect on racial justice (e.g., here) or other, too-frequently overlooked, aspects of Dr. King's legacy, including his anti-war and anti-poverty activism. I strongly support the call by members of the King family and other civil rights leaders to use today's commemoration to demand voting rights legislation essential to protecting what remains of democracy in America.

That said, although I discuss racial bias in policing below, today's essay is not principally about Dr. King's work. What is it about? I want to offer a hypothesis to explain the Supreme Court ruling on Thursday rejecting the OSHA rule requiring employers with 100 or more employees to require workers to be vaccinated or to submit to regular testing and wear masks. Although my Verdict column on Friday discussed the case, it did so primarily to contextualize my contention that Justice Gorsuch's decision to go unmasked on the bench called into question his ability to judge the issues in the case (and the accompanying Medicare/Medicaid case) with an open mind.

My hypothesis is that the OSHA ruling reflects a judgment by the majority of the Court that President Biden and his administration were using their power under OSHA pretextually.

Friday, January 14, 2022

The Connection Between Indecency and Political Nihilism

by Neil H. Buchanan 
Something very different has taken hold on the American right in recent years.  That change began to emerge long before Donald Trump's 2015 announcement of his presidential run, but it obviously intensified immediately thereafter and has only become worse nearly every day over the last six-plus years.  I have recently been describing that change as an outbreak of indecency, the borders of which are not bright lines but which is nonetheless much worse than garden-variety jerkishness (of which there is also no shortage these days).

In a Dorf on Law column on Monday of this week, I took a run at describing what makes indecency a categorically different problem for the country.  I spent some time describing why some truly bad behavior -- the most prominent example of which is verbal abuse of restaurant servers and other retail workers -- does not (usually) cross over the line into being indecent.

To this point, however, I had not invoked one of the most famous and effective uses of the decency/indecency concept, which happened at the lowest point of the McCarthy red scare in the 1950's.  Here, I want to bring that historical moment into the story and use it to further discuss why this metastatic indecency is distinct and dangerous.

Thursday, January 13, 2022

The Pope and Pets

by Sherry F. Colb

Last week, the Pope reportedly told an audience that married couples that have pets instead of children are selfish. Before you could say “He no play-a da game, he no make-a da rules” (Earl Butz's reaction to an earlier Pope refusing to endorse contraception as a means of reducing world hunger), social media lit up with debates about whether the Pope did or did not "have a point." I will briefly touch on the substance of these debates and then turn to a somewhat different but related argument that I have heard more than once.

Those attacking the Pope's words pointed out that (a) he does not have children, raising the question whether it is the absence of children or the presence of pets that triggers the charge of selfishness; (b) he lives in a palace surrounded by priceless art, suggesting that he also lives in a glass house; (c) our world is overpopulated, and the large number of children who then become grownups strains the carrying capacity of the planet, pumps carbon into the atmosphere, and threatens the extinction of many species, suggesting that the selfish choice is to reproduce rather than to refrain from doing so; and (d) why would a man who took the name of St. Francis of Assisi, the patron saint of animals, condemn couples who care for animals as selfish?

Wednesday, January 12, 2022

The Canadian Right: Adolescent Snark, Very Personal ad Hominems, and Laughable Bothsidesism

by Neil H. Buchanan
Should we all just move to Canada?

Last week saw a significant worsening of the already dire political situation in the United States.  Although Republicans had spent the last year trying to block or hobble investigations into the terrorist attack on the Capitol last January, some Republican leaders have been surprisingly honest that they were doing so simply because they thought that an investigation would harm their party's chances in the 2022 midterms.  Political cynicism on an issue of such fundamental importance takes one's breath away, but at the same time, it somehow feels almost normal and not norm-shattering.  They will do anything to win elections.  Full stop.

Now, however, it has become clear that there is something different going on.  It is not even worth going back over the much-discussed spectacle of Ted Cruz apologizing to the right-wing media empire for having correctly called the Capital attackers terrorists.  What is worse is that the new Republican line is that Democrats are pursuing this investigation merely for gratuitous fun, with various Republican politicians and Fox personalities referring to last week's commemorations as "like Christmas for Democrats" (or "the 4th of July," depending on who one listens to).  The new party line -- strictly enforced -- is that Republicans must say that domestic terrorists are not terrorists (so long as they support Donald Trump), and any effort to investigate the insurrection is itself an attack on America.

Frequent readers of Dorf on Law are by now accustomed to reading about my deep pessimism about the future of the rule of law and constitutional democracy in this country.  That pessimism is hardly a recent thing for me.  A few weeks ago, a friend reminded me that I had written a column back in June 2016 discussing the idea that people might decide to move out of the United States if Trump were to become president.  In that column, I devoted my analysis to asking where a would-be American expatriate might think about moving.

With the recent further intensification of Republicans' anti-republican efforts, now would be a particularly good time to revisit that issue.  Thus, I published a new column today on Verdict under the uncharacteristically short title: "Where to Move?"  There, I spent most of my time talking about the United Kingdom, even as I noted that the most obvious answer to that question is Canada.  Because that column was already so lengthy, I referred readers here, promising that I would address the more obvious possibility at length.  So, what about Canada?

Tuesday, January 11, 2022

SB8 and the Madisonian Compromise

 by Michael C. Dorf

With first-semester constitutional law grading behind me, I recently turned my pedagogical energy towards revising my syllabus for the coming semester's instantiation of my federal courts course. Federal courts is an advanced course in procedural law, with a focus on the jurisdiction of the federal courts and the relation between federal courts, state courts, and administrative agencies. It was more or less invented as a subject in the 1950s, although the leading cases date back to the early Republic. The course material is conceptually difficult and deeply puzzling. I try to give my students a flavor of the complexity of the law in this area while also emphasizing that what sometimes seem like maddeningly technical questions camouflage important policy disputes.

As with most law school courses, there is a canon of cases that doesn't change much from year to year, and then there are updates. For example, when I took the course (from the late great Dan Meltzer) in 1989, the Supreme Court had cut back on but not yet gutted federal habeas corpus as a mechanism for challenging state court convictions and sentences. Since then, Congress and the Court have made habeas a virtually empty vessel, making the teaching of the relevant material a bit like teaching Kafka's The Trial. There are procedures and forms but little discernible connection to justice. Similarly, post-9/11, cases involving habeas as a means of challenging executive detention (the original purpose of the Great Writ) played a more prominent role than when I studied the material as a student.

For this year's version of the course, I'm planning to open the first day with a brief summary of Whole Woman's Health v. Jackson -- the SB8 case -- because it raises the question of how there can be a constitutional right but no means of vindicating it. However, the opening day discussion will be mostly just a teaser, because there is no real way to understand all that's going on in the case without taking most of the course. Thus, the final reading for the course will be Whole Woman's Health v. Jackson itself and some notes and questions. In the balance of today's essay, I'll set out my initial first-day teaser questions, then reproduce a slightly modified version of the notes and questions I'll include in the final day's reading, and then riff on one of those questions.

Monday, January 10, 2022

Has Everyone Lost Their Decency? And What Does that Even Mean?

by Neil H. Buchanan

In a recent column, I used the word "indecency" to describe a comment from one of Dorf on Law's most persistent trolls.  Specifically, the troll in question tried to bolster his argument against women's reproductive rights not by making anything resembling a reasoned argument but by resorting to ad hominem attacks.  That in itself is not indecent, but one of those ad hominem attacks mocked a law professor who had recently written a searing column in The New York Times under the headline: "I Was Raped by My Father. An Abortion Saved My Life."
Even people who are eager to control women's bodies would, one think, at least acknowledge that some personal experiences are simply heart-breaking and deserve respect.  Not our troll, who decided that the better move was to sneer at the pain that the writer had bravely shared with readers of The Times.
That troll's mockery was one of the coincident events that led Professor Dorf to make the unfortunate -- but entirely appropriate -- decision to shut down comments on this site, as he explained in: "This is Why We Can't Have Nice Things: Blog Closed to Comments." Years of low-level trolling by various readers had recently accelerated and intensified, and it was no longer sensible to continue to provide a platform for that kind of ugliness.  Comments closed.

Here, I want to discuss the broader problem of this kind of indecent cruelty and lack of empathy (or even basic humanity).  Importantly, there is a difference between coarsening of social interactions and outright indecency, although of course there is no clear line that says when something has gone too far.