Showing posts from March, 2018

Justice Stevens Proposes Repealing the 2nd Amendment and Takes Friendly Fire From Immodest Critics

by Michael Dorf Earlier this week, retired Supreme Court Justice John Paul Stevens--who will turn 98 in less than a month--wrote an Op-Ed in the NY Times  calling for the repeal of the Second Amendment. Justice Stevens praised the post-Parkland student-led activism and, in an essay that reprised arguments he set out in Chapter VI of his 2014 book Six Amendments , made two core points: First, that the 2008 SCOTUS decision in DC v. Heller , from which he dissented , was a radical break with the militia-centered understanding of the Second Amendment that had prevailed since the Founding; and second, that although Heller would likely allow such measures as strengthened background checks, the nation needs truly effective comprehensive gun control, which requires repealing the Second Amendment. Many people were unhappy with the Stevens Op-Ed. As one would expect, firearms libertarians who think that Heller was rightly decided and in the national interest, took exception to both Stevens

Gerrymandering, Two Constitutional Arguments, and a Remedy

by Neil H. Buchanan Earlier this week, the Supreme Court heard oral arguments on its second gerrymandering case of the term, Benisek v. Lamone , which presents a challenge to the Maryland legislature's redrawing of one of that state's congressional districts.  As in all such cases, there seems little doubt that gerrymandering happened.  The Court simply cannot agree on what to do about it, if anything. Benisek differs from the Court's other gerrymandering case in important ways, the most obvious of which is that Gill v. Whitford involves a challenge to an extreme Republican gerrymander of the Wisconsin legislative map, whereas the Maryland case involved a Democratic gerrymander.  As I will discuss below, the cases make it clearer than ever that legislative districts should no longer be drawn by partisans on either side. But first, it is useful to discuss the fear about public perceptions that might be driving the Court's thinking.

Dogs on Planes, Hunting, and Human Behavior

by Sherry F. Colb In my Verdict column this week , I consider the question why the woman whose dog Kokito likely suffocated to death inside a United Airlines overhead bin  did not release her dog to save his life. I suggest that the Milgram Experiment of the 1960's, a study that may not actually explain the Nazi phenomenon that it was intended to investigate, has something to tell us about what happened on that airplane. To boil it down to one sentence, the woman may have felt completely unable to disobey the flight attendant who told her that the dog carrier had to be in the overhead compartment. The reason we might feel it necessary to explain the woman's behavior in this case is that many of us agree that the woman should have opened the bin and saved her dog. Why? Because Kokito was suffering and died unnecessarily, and many people believe that we have an obligation to prevent this from happening  to a vulnerable and innocent animal. So how do we explain hunting? How

What Story Will Republicans Try to Tell When Their Tax Cuts Fail to Deliver?

by Neil H. Buchanan The Republicans passed their regressive tax bill last year in the face of widespread public opposition, with defections by House members from suburban districts and a rushed legislative process that made a mockery of the idea of deliberative government.  Even so, they managed to deliver all of their votes in the Senate, including the self-styled deficit hawks who made a big show of concern before caving to party orthodoxy. And despite their most fervent wishes and a brief blip in the polls, the new tax law is still not popular .  As I described in companion columns on Verdict and Dorf on Law last week, the public has very good reasons for hating a law that was very clearly designed to worsen already historic levels of inequality.  To their credit, people are not being bought off with a few extra dollars in take-home pay. In spite of this, will Republicans convince themselves to try to pass another round of tax cuts?  And if they do, how will they justify fur

Donald Trump Doesn't Know the Meaning of the Word "Conflicted" (But His Lawyers Should)

By Diane Klein On Monday, March 19, 2018, Trump attorney Jay Sekulow announced the addition of lawyer Joseph diGenova, a Reagan-era District of Columbia U.S. Attorney, to Trump's Russia team.  Whatever attracted Trump to diGenova - his conspiracy theorizing on Fox, his operatic pipes on display at the  Gridiron dinner , or his legal acumen -  Sekulow was at the ready. On Thursday, diGenova's wife and law partner, Victoria Toensing (another Reagan-era septuagenarian), joined the team.  That same day, experienced Washington lawyer John Dowd  resigned , after warning about potential conflicts of interest related to the pair.  Sekulow began equivocating  about the new line-up on Friday, and by Sunday morning, he had to take it all back.  According to his March 25, 2018,  statement , Trump was "disappointed that conflicts prevent Joe diGenova and Victoria Toensing from joining the president's special counsel legal team."

Congressional Power to Immunize the President Against State Court Litigation

by Michael Dorf In a post  on Thursday of last week, I noted a friendly disagreement with Prof. Josh Blackman over a question that is, at this point, entirely theoretical. The two of us, along with Prof. Ben Zipursky, were guests on a KPCC radio show to discuss Zervos v. Trump . We all agreed that the NYS trial court judge correctly ruled that the president lacks temporary immunity from suit in state court, an issue that had been left open by the Supreme Court in Clinton v. Jones . Josh and I agreed that Congress could provide the immunity the president sought by statute, but he thinks such immunity could only apply in federal court, not state court, because Congress controls the jurisdiction of the federal courts but has substantially less control over what happens in state court. In response, I wrote: I don't think that a law granting the president temporary immunity to suits would be about jurisdiction at all. It would be a rule of substantive law, like the provision of fed

How to Talk about President Trump?

By Eric Segall No President in my lifetime (probably ever) has caused as much consternation and soaring negative rhetoric as Donald Trump (and for good reason). Sure, I remember my parents' friends saying that if “Tricky Dick” wins they were going to move out of the country, but times were different then (no cable television or social media). I also do not think either President George W. Bush or President Obama (though it is an intuition not a conclusion based on data) triggered the same level of nasty, name-calling among folks as does Trump (leaving out the fringe right for Obama).

Will Republicans Take the Tax Cut Merry-Go-Round For Another Spin?

by Neil H. Buchanan My new Verdict column, published today , begins with a personal remembrance of Julie Hilden. whom professor Dorf memorialized in a post here on Monday.  I hope that reading about her might cause some of us to aspire to be even one-tenth as kind, generous, and caring as she was. Returning to the mundane issues of the day, the remainder of my column assesses why the Republicans are having such a hard time selling their recent tax cuts to the American people.  Even though the bill was wildly unpopular while Republicans were ramming it through Congress by breaking every rule and norm in sight, they were absolutely sure that people would soon love the bill, because it was a tax cut, and everyone loves tax cuts.  Right?

A Latent Question in Zervos v Trump: Why Don't We See More Delayed Legislation?

by Michael Dorf Earlier this week, NY State trial court Judge Jennifer Schecter denied President Trump's motion to dismiss or delay proceedings in the defamation lawsuit against him by Summer Zervos--a former Apprentice contestant whom Trump branded a liar in 2016 after Zervos publicly claimed that Trump had groped her without consent. Judge Schecter's opinion relies on Clinton v. Jones , which held that a sitting president lacks either full or temporary immunity from litigation for unofficial conduct preceding his taking office. In Jones , the Court left open the possibility that a different rule might apply in state court, because considerations of federalism and the supremacy of federal law, rather than separation of powers, would be in play. Judge Schecter concluded that the question left open in Jones should be resolved against any form of temporary immunity. Judge Schecter's opinion makes two key points. First, she says that concerns about distracting the preside

Is Marriage a Fundamental Right "in Equal Protection"

by Michael Dorf In my latest Verdict column , I discuss bills in Alabama and other states that would eliminate the obligation of couples seeking to marry to obtain a marriage license from a state or local official. Although these proposals have been touted as a means by which states can evade the obligation to permit same-sex marriage, I note that they don't go nearly that far. They would abolish marriage licenses ; they would not abolish marriage itself. But what if a state were to abolish marriage as a legal status for everyone? Would that be unconstitutional? I first consider the equal protection objection. To evaluate that requires grappling with the extent to which Palmer v. Thompson remains good law. Palmer  upheld Jackson, Mississippi's closing of all public swimming pools in response to the obligation to desegregate its public swimming pools. Although I think Palmer was wrongly decided on its facts, I argue that the general principle it articulated--that a facially

What Should Hillary Clinton Do (or Not Do) Now?

by Neil H. Buchanan Last week, in " Hillary Clinton and the Heckler's Veto ," I concluded with some sadness that the Hillary haters have won their war.  That is, even the Clinton detractors who are not Trumpian "Lock her up!" types have been so unfairly negative about Clinton for so long that her every utterance is now immediately shredded and recharacterized in absurd ways.  Although it should not have come to this, we have reached the point where Clinton can only make matters worse by saying or doing anything.  Anything at all. As I pointed out, hatred of Clinton is such that she is also criticized when she does not say something.  That kind of criticism typically runs along these lines: "Oh, and if Hillary Clinton really cared about _____, shouldn't she have bothered to weigh in on this latest controversy by now?  Huh?  Shouldn't she?!" The people who hate her -- and I am very much including reporters for The Washington Post and The

Remembering Julie Hilden

by Michael Dorf Julie Hilden -- lawyer, author, and editor -- passed away on Saturday. She was my friend for over 30 years. Julie combined a fierce intelligence with incredible kindness. Her work was brutally self-critical even as she was extraordinarily generous to others. I'll try to paint a picture of her life and work, but this is also a personal remembrance.

Even If McCabe Committed Wrongdoing, He Was Likely Fired for "This Russia Thing"

by Michael Dorf A number of commentators who are not simply apologists for Donald Trump have been arguing that the firing of Deputy Director Andrew McCabe by (supposedly recused) AG Jeff Sessions cannot have been a simple political hatchet job, because it was based on a recommendation of the Department of Justice Inspector General, a nonpartisan professional who was appointed to his current position by President Obama. I think they're making a straightforward logical error. McCabe contends that he did nothing wrong. Maybe he's right about that. Let's assume for the sake of argument, however, that he's wrong. In other words, let's stipulate that if and when the report of IG Michael Horowitz is made public, it contains smoking-gun evidence that McCabe committed the wrongs that have been publicly alleged and that these are firing offenses, even for someone who is barely a day away from retiring with full benefits. Nonetheless, it is possible -- indeed, given Trum

How Scalia Saved Originalism By Destroying It

by Michael Dorf Linda Greenhouse writes in The New York Times that Justice Scalia's legacy has already begun to unravel, as the SCOTUS--hitherto reluctant to cite legislative history in its statutory interpretation cases--has embraced legislative history since his death.  Greenhouse goes on to say that this development undercuts Scalia's lasting impact overall. She contends that Scalia wrote few memorable  majority opinions, citing DC v. Heller as a notable exception. She acknowledges that Scalia's admirers say his main legacy was "his insistence on originalism in constitutional interpretation and textualism for statutes." Yet, Greenhouse says, "[d]ebates over how to read the Constitution preceded Antonin Scalia and will be with us forever," thereby implying that Scalia's contribution to constitutional interpretation is negligible. And with the "debate about legislative history" that Scalia sparked "a fading memory," Greenhouse

Hillary Clinton and the Heckler's Veto

by Neil H. Buchanan The "heckler's veto" describes a situation in which a person's speech is effectively silenced by the reactions or anticipated reactions of people who disagree with the speaker's views.  The threat of hostile reactions, up to and including violence, causes people to choose (under duress) not to speak or authorities to tell them not to speak. Has Hillary Clinton's very existence become an especially pointed version of the heckler's veto?  It has long been obvious that her every word will be distorted by her detractors and that she will be held to mutually contradictory standards.  And now, finally, it appears that she simply cannot make an argument without her words being completely misconstrued and her motives impugned, so much so that she would be better off saying nothing.  (Perversely, she would then be criticized for her silence, but that is par for this course.) I offer these thoughts in the light of a recent mini-kerfuffle o

Hamilton Versus Trump Part 4: "talents for low intrigue, and the little arts of popularity"

by Michael Dorf My "Hamilton Versus Trump" seminar is now firmly back in Hamilton territory. This week's reading included Federalist 68 , in which Hamilton defends the Electoral College on the ground that its (small-r) republican mechanism rather than a (small-d) democratic process will generally lead to the election of statesmen rather than demagogues. The Electoral College mechanism, he writes: affords a moral certainty, that the office of President will never fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications. Talents for low intrigue, and the little arts of popularity, may alone suffice to elevate a man to the first honors in a single State; but it will require other talents, and a different kind of merit, to establish him in the esteem and confidence of the whole Union, or of so considerable a portion of it as would be necessary to make him a successful candidate for the distinguished office of President of the U

Does Animal Rights Advocacy Frustrate Human Rights?

by Sherry F. Colb My Verdict column for this week explores the question whether the causes of human rights and of animal rights are in some way incompatible with each other. Are those who support animal rights either hostile or indifferent to human rights? And have human rights achievements made it more difficult to advocate for animal rights? In this post, I want to consider one reason for the perception among some audiences that animal rights may be incompatible with human rights. The reason is a subset of what Professor Gary Francione has dubbed "single issue campaigns."  Single issue campaigns are attempts to persuade an audience that a particular type of animal exploitation is especially immoral and must stop. Sometimes, single issue campaigns have no implications for human rights, one way or the other. Advocacy against foie gras may represent one example. But on occasion, a single-issue campaign will select a form of animal exploitation that seems mainly

Hollywood Bashing and the Gun Debate

by Neil H. Buchanan Proposals to arm teachers or create larger security presences in schools are highly unpopular, opposed by teachers themselves (who would presumably be among those with the most self interest in this debate) as well as those who study school violence. Even in Florida, where gun love has always run to extremes and where one might have expected the public response to the Parkland shootings to include calls to give teachers guns, the public at large -- by a decisive majority (56-40) -- is against arming teachers and school officials. Actually, of course, some opportunistic politicians have been calling for arming teachers and adding (more) armed guards to American schools.  And the unpopularity of that idea is, as is always true in American debates about guns (and taxes, and the environment, and ...), not stopping Republicans from moving forward with bad proposals. When the Republicans who dominate Florida's government surprised everyone by passing a modest

Even a Little Bit of Power Needs to Be Exercised Responsibly

by Neil H. Buchanan The noted philosopher Ben Parker (uncle to Peter Parker, aka Spiderman) once said: "With great power comes great responsibility."  Or maybe it was Voltaire who said that.  In any case, it would seem to follow that with some modicum of power comes a requirement at least not to act irresponsibly.  And among people in academic circles, having even a modicum of power is actually rather rare. Consider Paul Krugman.  He is the most honored economist of his generation, the only economist ever to have won both of the field's top prizes.  He also has a preternatural ability to communicate clearly and concisely -- an ability that is, to put it mildly, not nurtured by economics training -- such that he was given a perch as a regular columnist on the op-ed page of The New York Times . Combine serious academic chops with a good bullhorn and the ability to use it, and good things ought to happen.  Krugman also had the good luck, if one can call it that, of h

Is Trump's Twitter a Public Forum and the Limits of the Law

By Eric Segall On Thursday, various plaintiffs argued in New York federal court that President Trump does not have the right to block people on Twitter. This issue is enormously difficult, has serious implications, and also demonstrates the limits of "legal reasoning."

Does the "Essential Role" Theory of Appellate Jurisdiction Survive Patchak v. Zinke?

by Michael Dorf Last week's SCOTUS decision in Patchak v. Zinke   raised but ultimately did not resolve two of the most fundamental questions about the power of Congress to limit the jurisdiction of the federal courts: (1) Where is the line between acts of Congress that permissibly change the law applicable to pending and future cases versus acts that impermissibly dictate the result in a particular case?; and (2) What limits does the Constitution place on Congress's ability to exclude cases from the federal courts' jurisdiction? In my latest Verdict column I discuss the Court's treatment of the first question. Here I'll consider what the Court says about the second. Patchak does not definitively answer either question, because there is no majority opinion and the concurrences in the judgment (by Justices Ginsburg and Sotomayor) would resolve the case on wholly different grounds. However, what the plurality opinion of Justice Thomas says about the second questi

The Italian Job -- And Its Ironies

by Sidney Tarrow On March 4th, Italy underwent one of its many “crises” — a term that is sometimes overused on the peninsula, but which seems to have been fitting this time. After over two decades of what political scientists called “The Second Republic,” Italian political life was turned upside-down. First, the governing center-left PD crashed and burned, losing almost half of its votes and suffering the resignation of its unpopular leader, Matteo Renzi. Second, coming from almost nowhere since its creation by a noted comic, Beppe Grillo, in 2009, a party called the “Five Star Movement” (M5S) captured a third of the electorate, emerging from the election as the largest single party. Under normal circumstances, this would have made it the logical first choice to form a government, but the M5S asserted throughout the campaign that it would refuse to coalesce with any of the other parties; at this writing, it has still not broken that pledge. Third, since much of the campaign tur

When Should Liberals Try to Remove Judges From the Bench?

by Neil H. Buchanan Judges inevitably make some decisions that outrage people.  The timeless question is when a decision crosses a line into territory that rightly calls for a judge's removal from the bench.  Calls for judges to be deposed have more typically been heard among conservatives in the U.S., but the question comes up regularly among liberals as well. Even in states where judges are elected, those judges are in various ways protected from the prevailing political winds through a number of counter-majoritarian measures (nonpartisan elections, appointment followed by retention elections, and so on).  Non-elected judges are even more politically independent, especially at the federal level, where the standards for impeachment were quite deliberately set at a high level. In the abstract, therefore, everyone accepts the idea that judges cannot simply be politicians in robes.  Three recent incidents, however, provide potentially useful insights in addressing the question

What is Narrow Tailoring in Religious (and Speech) Exception Cases?

by Michael Dorf Last Friday saw the release of an unpublished opinion of a 3-judge appeals court panel in the Colorado case of People v. Ray . The very fact that the decision is unpublished suggests that it does not decide a novel issue--and it doesn't--but thinking about this seemingly obviously correct decision may prove interesting for thinking about a different class of cases. The facts are simple enough. Greta Lindecrantz was called by the prosecutor to testify at the state post-conviction hearing of Robert Ray, who had previously been found guilty of murder and sentenced to death. Lindecrantz is a Mennonite. She said that her truthful testimony would likely lead the court to find that, contrary to Ray's claim, he received effective assistance of counsel, which in turn would lead to his death penalty being affirmed, which in turn would render her complicit in his execution, in violation of her religious beliefs. Lindecrantz was held in contempt, which she challenged on

Simple Politics and Gun Control

by Neil H. Buchanan What kind of gun legislation would result from straight-up democracy?  That is, if there were no constitutional constraints and our system were allowed simply to run its course through normal political competition, what would our gun laws look like? It has been barely more than two weeks since the Parkland killings turned the U.S. political debate on its head.  Some Republicans seem to be rethinking their once-politically-safe genuflection to gun absolutists, and at least for now, many large businesses are moving in the right direction. Donald Trump, of course, has said all kinds of things, most of them ridiculous (including his "confiscate first, due process second" approach to gun control); and even though he recently said some things that might be cause for optimism, there is every reason to believe that he will backtrack and ultimately side with the right-wing extremists. Even in this new and unexpected chapter in the story of American gun pol

Animal Agriculture and the Non-Identity Problem

by Michael Dorf On Saturday, Prof. Colb and I will be speaking at an animal rights conference at Bucknell University with a focus on approaches to the topic that aim to abolish animal agriculture. Our topic is "Who Benefits From Abolition?" It is framed as a response to a particular sort of objection to the case for veganism. Consumers of animal products sometimes say that their acts are harmless or even beneficial to the animals whose parts and products they consume, because those animals otherwise wouldn’t have existed. This claim appears to raise what philosophers call the non-identity problem.