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Anti-Textualism, Hostages, and Assymetric Partisan Dishonesty, Part One

In his column yesterday, Professor Dorf summarized and critiqued the oral argument in Fischer v. US , aka the "SCOTUS Insurrectionist Case." He ominously concluded that, based on the oral argument, there is strong reason to suspect that the Supreme Court's Republican appointees are planning to mangle statutory interpretation in a way that will result in many January 6 insurrectionists (and Donald Trump) having some or all of the charges against them invalidated. I want to note here my agreement with Professor Dorf's larger takeaway from that hearing, which he summarized in concluding the column: Fischer  is a January 6 case with implications for the pending D.C. case against former President Trump.  [T]he Justices' partisan druthers, not their methodological or even ideological commitments, appear to be driving their dispositions towards the case. Is that surprising? More than two decades after the shock of Bush v. Gore , it shouldn't be--but somehow, ev

The Ejusdem is Loose -- SCOTUS Insurrectionist Case Edition

Here's the key portion of  the statutory provision (18 U.S.C. § 1512)  that was at issue in yesterday's oral argument in Fischer v. United States : (c) Whoever corruptly— (1) alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object’s integrity or availability for use in an official proceeding; or (2) otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so, shall be fined under this title or imprisoned not more than 20 years, or both. The main argument offered by the lawyer for Fischer -- who is charged under § 1512(c)(2) with obstructing the counting of Electoral votes on January 6, 2021 by participating in the violent attack on the Capitol -- is that while his client's alleged conduct falls within the plain language of (c)(2) standing alone (because he allegedly "obstruct[ed]" an "official proceeding,") the language of (c)(2) takes its meani

10 Fascinating Facts About SCOTUS to Tide Us Over Until the Justices Wreck the Country in June

Between now and the end of the term, the Supreme Court will issue decisions concerning abortion, guns, administrative law, and Trump, Trump, and more Trump. (In addition to the high-profile cases, for example, today the Court hears oral argument in a case that tests whether the statute used to try January 6 defendants applies to their conduct.) My guess is that a lot of pain is coming our way as we head towards that great artificial deadline the justices created for themselves known as "June." As we are in a bit of a holding pattern with tornado-type turbulence surrounding us, I thought I'd provide a bit of, let's call it legal levity, as we wait for the Court to inflict pain on our people and our country. Here are ten fascinating facts about SCOTUS you might not know. 1.      MARBURY V. MADISON: THE POLITICAL TURNS PERSONAL AND THE PERSONAL TURNS  POLITICAL Most academics view much of Marbury v. Madison skeptically for many reasons, including that Chief Justice Joh

O.J. Simpson and America's Recurrent Racial Amnesia

The death of O.J. Simpson last week provides an occasion for reflecting on the decade in which his murder trial not only occurred but which in some ways it defined. I'll focus today's essay on the ways in which the Simpson case reflects a larger pattern of American racial amnesia. The irony of Simpson's legal team "playing the race card" was not lost on many commentators. O.J. Simpson was not unique in his ability to appeal to white Americans. Other Black athletes achieved similar levels of acceptance. But O.J. was among the most successful at it. If Mohammed Ali was the sports version of Malcolm X of the late 1960s and 1970s, the Juice was (what we now pretend was) the period's MLK Jr. It is difficult to think of any Black public figure of the time who was as beloved and accepted by white Americans. Bill Cosby (whose predatory behavior would not be widely known for decades) also makes the cut, but it is a very short list. Yet to see the use of race by Simpso

It is Not Only Republican Politicians Who Are Harming Education, Part 2: University Rankings Edition

[Note to readers: Three days ago, I published a column under the headline, "Two Outside Influences (Beyond the Obvious One) That Are Harming Higher Education."  Because that column was quite long, and because the headline was more than a bit opaque, I am breaking the column into two parts and publishing them under new titles.   I have thus gone back and edited Tuesday's column to include only the material relating to college sports, while today's column discussing the madness of university rankings appears below (with a short new intro).  For those of you who said of Tuesday's column, "Too long, didn't read," this is a second bite at the apple.]   This column continues my two-part discussion of the factors other than Republican anti - intellectualism that are harming higher education in the US.  Beyond the toxic effect that the full professionalization of college sports is having on the university landscape, which I discussed in Part 1 on Tue

How Should a Future Progressive Court Treat Roberts Court Precedents?

In his guest post on this blog last week, Professor Sobkowski critiqued Jesse Wegman's New York Times op-ed discussing the "crisis in teaching constitutional law."  Wegman blasted the Roberts Court for issuing a series of highly partisan, poorly reasoned constitutional decisions.  The Supreme Court, Sobkowski responded, has always been political.  If anything, the Roberts Court today is merely following the lead of the Warren Court, which "embraced judicial supremacy" and took it upon itself to "refashion the Constitution to meet contemporary needs."  Professor Dorf responded to Sobkowski by pointing out important ways in which the Roberts Court differs from its predecessors, including the Warren Court.  While acknowledging the legitimacy of Sobkowski's basic premise--values, after all, have always affected the Court's work--Dorf suggested that the Roberts Court also differs from earlier Courts in important respects.  For example, as John H

Rethinking Standing to Litigate a Chilling Effect in Abortion Cases and Beyond

My latest Verdict column  discusses last week's ruling by a state appeals court upholding a preliminary injunction against the application of Indiana's restrictive abortion law to plaintiffs who claim that under certain circumstances it would violate their religious freedom. The decision rests on the state's Religious Freedom Restoration Act (RFRA), which, as I explain in the column, is materially identical to the federal RFRA. The column focuses chiefly on the court's substantive analysis, but much of the opinion addresses procedural issues. In today's essay, I'll say a bit more about one of those issues: legal standing based on a law's chilling effect. The state objected to the plaintiffs' standing by pointing out that none of them was pregnant and thus none of them was currently seeking an abortion. This objection could be characterized as going to standing--which typically requires a reasonable fear of an imminent  injury as the basis for standing f

It is Not Only Republican Politicians Who Are Harming Education, Part 1: College Sports Edition

[Note to readers: Three days ago, I published a column under the headline, "Two Outside Influences (Beyond the Obvious One) That Are Harming Higher Education."  Because that column was quite long, and because the headline did not adequately communicate the content of the column, I am breaking the column into two parts and publishing them under new titles.  I have thus edited what is now Part 1 below to include only the material relating to college sports, while Friday's column discusses the madness of university rankings (with a brief new intro).]   To be clear from the start, the major threat to higher education in the United States today is the intensifying anti-intellectualism of the Republican Party.  I have written about this extensively, of course, in part because the especially ridiculous version of that anti-intellectualism in Florida was the proximate cause of my decision to " retire " early and ultimately to move out of the state and country.  And