Showing posts from August, 2020

The Cynical, Racist, Counterproductive Logic of Trump's "Fear Joe Biden's America"

  by Michael C. Dorf When the speakers at last week's Republican National Convention were not trying to persuade America that there exists a hitherto-unseen Donald Trump who is a competent and compassionate human being, they were mostly issuing a not-at-all-veiled warning to suburbanites that Joe Biden's America will feature widespread and nonstop violence. As numerous commentators observed, the message is odd. Trump is warning that what people are seeing on the news from Portland, Chicago, Kenosha, and other "Democrat-run" cities will happen if Biden is elected, but of course, the people are seeing what's happening now, in Donald Trump's America (except for the video clip of Barcelona in 2019 that the RNC aired). Trump came into office promising to end "American carnage" that did not exist. He's running for re-election warning that his opponent will bring about carnage even as he himself has done just that. Who would possibly buy that argument?

The Complexity of Free Speech Doctrine

  by Michael C. Dorf At 9 am today (that's Friday, August 28, 2020 if you're not sure when I wrote this), I'll be presenting a "Keynote" address on freedom of speech, available for free (but you need to register) through eCornell . This is a lecture for an all-day “boot camp” we provide for students taking Cornell's terrific First Amendment clinic . Most but not all of the clinic students will have taken our doctrinal class in the First Amendment (taught by my colleague Professor Nelson Tebbe). The boot camp lectures provide an overview for those who haven't and a refresher for those who have. I’ve given a version of the free speech lecture the last couple of years in person. We decided to open it up more broadly this year in light of the fact that it will be via electronic means anyway. The clinic students will be able to ask questions via Zoom, whereas the rest of the world will be able to enjoy (or detest or be bored by) my lecture as a webinar. When I

Why Does Congress Not Run the Post Office Like a Business -- i.e., With Lax and Forgiving Rules?

by Neil H. Buchanan   Who could have imagined that the United States Postal Service would become a flashpoint in a national election, especially in the midst of a global health crisis?  Yet here we are, with movement conservatism's longstanding loathing of the Post Office having joined in an unholy alliance with Donald Trump's efforts to convince the world of the complete lie that mail-in voting is rife with fraud. Here, I want to focus on the non-Trumpian side of that alliance, that is, on the decades of efforts by anti-government extremists to disparage the very idea of a national postal system run as a public service by the national government.  The reasons for that bone-deep hatred of the USPS are perversely fascinating on their own (de)merits, but there is a deeper hypocrisy involved as well.

We are All Legal Realists Now

 By Eric Segall "Justice Douglas, you must remember one thing. At the constitutional level where we work, ninety per cent of any decision is emotional. The rational part of us supplies the reasons for supporting our predilections."   Chief Justice Charles Evan Hughes   Last week I had the pleasure of having Mike on my podcast/video series Supreme Myths and, among other things, we had a nice chat about legal realism. This topic is extremely important given the trope that has been circulating among scholars and even Supreme Court nominees that Elena Kagan said at her confirmation hearing, "we are all originalists." This statement was proudly repeated by Justice Kavanaugh at his confirmation hearing, and it has been thrown at me numerous times during my debates with originalists, who often add the word "now" to Kagan's quote. This post argues that originalists employing Kagan's line to defend originalism ignore the context of her statement. I also

Taking Another Look at Biden and Harris: More Than Good Enough!

by Neil H. Buchanan It is political convention season, and I am deliberately not watching coverage of either party's virtual events.  Getting my information second-hand, it appears that the first night of the Republicans' extended-play version of Two Minutes Hate went even worse than expected.  Democrats, meanwhile, finished their event last week to generally quite positive reviews. My big worry about the Democrats' approach is that they seem to have aimed their message entirely at the moderation-obsessed punditocracy, betting the house on the idea that playing the centrist card and eschewing ideology of any sort will allow them to appeal to the possibly null set of swing voters.  In an election almost certain to be decided by turnout, Democrats seem to be counting on people of color and younger maybe-non-voters to show up at the polls in droves, without really giving them an affirmative reason to do so. To be sure, the negative reasons are more than enough, and I will onc

What is Nonoriginalism? A Response to Professor Ramsey’s Misunderstanding of our Analysis of the Natural Born Citizen Clause

  By Michael C. Dorf & Martin S. Lederman Earlier this month, Chapman law professor John Eastman wrote an op-ed in Newsweek proposing that Senator Kamala Harris might not be a “natural born citizen” (NBC)—and thus not eligible to be elected Vice President—if her parents, who were foreign nationals rather than U.S. citizens, were not permanent U.S. residents at the time of her birth in California. The op-ed’s title suggested that Professor Eastman was only raising questions, but its content affirmatively argued against Senator Harris’s eligibility to be president if her parents were “merely temporary visitors.” Professor Eastman’s op-ed was quickly weaponized by Donald Trump and his supporters, who used it to provide a patina of respectability to a repurposed “birther” attack—once again targeting the historic candidacy of a person of color. Accordingly, it was important to set the record straight by showing that Professor Eastman’s view is not merely unorthodox but well beyond the

Bannon, the NRA, and their Victims

  by Michael C. Dorf After NY Attorney General Letitia James announced that she was filing a lawsuit to dissolve the NRA for defrauding its donors, various wags (including the wags at NPR's Wait Wait Don't Tell Me news quiz) joked that prosecuting the NRA for defrauding its members would be harmful to the movement for gun control. Advocates of gun control should be pleased that its leadership was using donations from members for fancy clothes and vacations rather than to promote gun rights. That was a joke, in part because the remedy of dissolving the NRA would serve the interest of gun control too. But still, one might think that the gun control movement would be better off with the NRA leadership siphoning off funds that would go to promote gun rights if it is displaced by a more honest organization with the same ideological aims. Of course, in saying that, I do not mean to imply that the ideological aims played any role in the decision of AG James to pursue the case; it wou

Turning the Little People Against Each Other Is Conservatives' Second Most Reliable Strategy

by Neil H. Buchanan     The eviction crisis in America is no longer "looming" but has already begun, thanks to Senate Republicans' refusal to extend protections against evictions and also to their cavalier opposition to renewing income supports for people who have been laid off during the roiling economic disaster of 2020.  The Trump Administration joins its Senate enablers in not caring about those millions of desperate people -- people who are not only losing their homes but are having their credit records tainted in a way that will make their lives more difficult for years or even decades to come.   John Oliver's "Last Week Tonight" did a typically great job discussing this then-pending crisis more than a month ago .  Earlier this week, I took a different tack and asked why the supposedly brilliant aggregation mechanism known as the Invisible Hand did not cause people on both sides of potential evictions rationally negotiating solutions that would avoid

The Justice Souter Speech Every Law Student Should Read

 By Eric Segall School is starting again, sort of, and many law students will be taking constitutional law in one form or another. At most law schools, students will begin with Marbury v. Madison , or maybe McCulloch v. Maryland , and then work their way through over 200 years or so of Supreme Court cases involving many of our country's most difficult legal, social, and political issues. It is important that these students understand how the Supreme Court explains its decisions--usually in this form: here are the facts, here is the text relevant to the case, here is the history, here is the case law, and presto here is the conclusion.  But it is also important that students understand that the Court rarely gives a full and accurate picture of why it rules the way it does in constitutional law cases. To truly understand constitutional law, and maybe more importantly, to develop critical thinking skills, which every lawyer needs, students need to be able to see and understand what Pr

Why Would Any Landlord Evict Any Innocent Renter During a Crisis This Bad?

by Neil H. Buchanan One of the many, many crises facing the country today is the very immediate threat that millions of Americans will soon be evicted from their homes, whether those homes are owned or rented.  With more than 16 million people currently unemployed (ten million more than in February) and millions of others suffering from declining incomes, and with various types of federal assistance having expired three weeks ago, things are looking more and more dire. The big political story here is obviously the utter lack of concern that Republicans in the Senate and in Donald Trump's administration have shown for the plight of these people, none of whom did anything to deserve this terrible turn in their lives.  Because the sensible (and humane) policy responses to the current problem are blindingly obvious and not at all difficult to enact and implement, Trump and his enablers' indifference is all the more disgusting. Because this human tragedy has a non-mysterious policy

Vertical Precedent in the Challenge to Male-Only Draft Registration (and Beyond)

by Michael C. Dorf Last week, a panel of the US Court of Appeals for the Fifth Circuit reversed a district court judgment that had found male-only draft registration to be an unconstitutional denial of equal protection. The terse opinion in National Coalition for Men (NCM) v. Selective Service System  was based on the following reasoning: (1) the Supreme Court rejected the contention that male-only draft registration was unconstitutional sex discrimination in the 1981 case of  Rostker v. Goldberg ; and (2) lower courts are bound to follow the holding of a precedent by a higher court "even where subsequent decisions or factual developments may appear to have ‘significantly undermined’ the rationale for [the] earlier holding." Proposition (2) includes a quotation from a dissent by Justice O'Connor in Roper v. Simmons , but as the Fifth Circuit opinion correctly notes, the same proposition can be found in majority opinions in State Oil Co. v. Khan  (1997) and   Rodriguez de

Hoarding and School Reopenings

  by Michael C. Dorf My father passed away last month at the age of 89. (He did not have COVID-19.) Since my mother's death in 2013, my dad had lived alone in the house in which I grew up, maintaining a very active social life chiefly consisting of getting together with friends and family as well as attending concerts, operas, lectures, ballets, and films. During the pandemic, I spoke with him by phone every day but could not see him in person for fear of exposing him to unnecessary medical risk. I initially believed that I was calling daily to check up on him and to help him avoid social isolation, but I soon discovered that I looked forward to our talks as the highlight of my day. I also came to think of his physical isolation as an accidental blessing. For several years, my sister and I had been urging our father to sell his house and move to an apartment in something like assisted living, because his balance and physical stamina had declined (though his mind remained sharp). T

The Discomforts of Assessing Jim Crow-Era Politicians

by Neil H. Buchanan Brown v. Board of Education is, of course, one of the landmark Supreme Court cases in American history and a touchstone in constitutional law.  To this day, legal scholars try to make sure that their preferred interpretive theories comport with the outcome in Brown -- even when those theories seem to point in the opposite direction -- because the idea that the U.S. Constitution would allow public schools to be segregated by race is simply repugnant.  No one, it seems, wants to be on the wrong side of that history. But many people were very much in the wrong at the time and for a long while thereafter.  Moreover, even though being anti- Brown is now a fringe position, it is difficult to look at the country's regression toward open racism in the Trump era and not think that a depressingly large number of current American politicians and citizens would be willing to reject Brown today.  Once, "massive resistance" was the order of the day among almost

A Few More Thoughts on Supreme Court Secrecy

by Daniel Epps I'm pleased to be blogging at a venue I've been reading with pleasure for years. In my in inaugural post, I thought I'd offer a few more thoughts on the topic that has been on my mind this last week : secrecy at the Supreme Court. Mike has a thoughtful post on the topic , partly responding to my piece. I agree with much of what he says, and in any event I won't use my first post here to offer a rebuttal to the blog's founder and namesake! Instead, I'll just note that in my first-best world, we woudn't necessarily have more leaks. But we would have guaranteed disclosure, within a fixed and relatively short time period, of information that the current system treats as confidential. I'd like to see such a system adopted as a matter of formal rule or statute.  In terms of exactly how long that short time that period should be: I could live with ten years, though I suspect the necessary time limit to prevent disclosure from causing serious harm

In the Pandemic, a Little Bit of Economic Knowledge Is Even More Dangerous Than Usual

by Neil H. Buchanan Watching Republican politicians try to talk about economics is a combination of hilarious and terrifying.  With few exceptions, they are mouthing talking points that they do not understand, hoping to sound intelligent by intoning phrases like "incentivizing people not to work," "fiscally irresponsible borrowing," or "inefficient allocation of resources."  Their only true skill is figuring out how to dodge followup questions from reporters. Of course, there are also many Democrats who similarly know nothing but what staffers have written for them, which means that it is not in fact the politicians who are making themselves themselves look good or bad.  Ultimately, what matters is whether the talking points themselves are actually defensible.   And one genuine public service that Republicans have performed over the past generation is proving that -- spin or no spin -- they as a group have zero understanding of how economics works.  This u

Deliberate Indifference

by Michael C. Dorf There is so much that is wrong with the Supreme Court's order last week in Barnes v. Ahlman that it is hard to know where to begin. A federal district judge ordered an Orange County, CA jail to implement various measures to reduce the risk of COVID-19 spread among the inmates and pre-trial detainees who are housed there. The Ninth Circuit declined to stay that order pending appeal, but the SCOTUS took what used to be the extraordinary step--but has become an increasingly common step--of intervening to stay the injunction without opinion. The vote was 5-4, with the Republican appointees in the majority. Justices Breyer and Kagan dissented but did not write. Justice Sotomayor, joined by Justice Ginsburg, did. I commend her dissent to readers. Here I'll note a few key points before turning to my own contributions.

Arrogant Nuttiness: Constitutional Law in a Justice Thomas World

By Eric Segall Much has been written about Justice Clarence Thomas' oft espoused view that he doesn't believe in following prior cases if they were obviously decided incorrectly. Whereas all the other Justices at least pay lip service to ideas of reliance, predictability, and other rule of law type values inherent in the nature of stare decisis , Thomas rejects those factors. In his own words  (and please forgive the long but necessary quote): In my view, the Court’s typical formulation of the  stare decisis  standard does not comport with our judicial duty under Article III because it elevates demonstrably erroneous decisions...over the text of the Constitution and other duly enacted federal law. It is always 'tempting for judges to confuse our own preferences with the requirements of the law,'  Obergefell  v.  Hodges  ( Roberts, C. J.,  dissenting), and the Court’s  stare decisis  doctrine exacerbates that temptation by giving the venire of respectability to our co

The New Poll Tax in the Florida Felon Disenfranchisement Mess

[Note to readers: My new Verdict column, " Economic Theory Shows that People Will Make Choices that Worsen the Pandemic ," was published this morning.  Typically, we at Dorf on Law pair a follow-on column here to expand on some aspects of our Verdict columns.  I plan to do that next Tuesday rather than today, however, because I want to discuss an important case that is pending in the 11th Circuit.  As I will describe below, I have now co-signed an amicus brief in that case.] When is a tax not a tax?  According to a new amicus brief that twelve other tax law professors and I co-signed this week, the constitutional prohibition on imposing a "poll tax or other tax" most definitely applies to taxes that are given a different label (fees, fines, and so on).  Drafted by some excellent lawyers at Debevoise and Plimpton, the brief argues that anything that functions as a tax -- an obligation to pay the state that carries the force of law -- cannot be used to deny any Ame

Leaks, Legal Realism, and Private Deliberations

by Michael C. Dorf My latest Verdict column discusses a four-part series on the Roberts Court by reporter and judicial biographer Joan Biskupic, which appeared on last week. Although I express admiration and respect for Biskupic (whom I have known for many years), I criticize the entire genre of behind-the-scenes reporting on the Supreme Court. My point is not that the Court should be shrouded in glorifying secrecy but that the revelations by Biskupic and others are invariably duds. They provide virtually no insight into the Court's workings that is not apparent from reasonably careful study of its public product. Here I'll elaborate a bit further on how the revelations fail to illuminate in order to confirm my conclusion that the reporting has virtually no public benefit. I'll then describe the cost of leaks of what ought to be private deliberations. Although I don't think the cost is very large, it is large enough to outweigh the nonexistent benefit.

The Tender Feelings of Factory Farmers as a Window into Two Types of Conservative Hypocrisy

by Neil H. Buchanan Back in college, a friend who was a pre-med student landed an internship in a research laboratory.  She left for her first day on the job with great excitement, but she returned looking distraught.  Why?  It turned out that her job was to handle animals (including, as I recall, even domesticated animals like cats) that were going to be the subject of experiments, after which they would be killed -- by my friend.  (The passive voice can hide very pointed realities, indeed.) When I asked her whether she would quit, she said that she was planning to finish the semester as planned, even though it would be emotionally draining.  She then offered this: "I'm telling myself that at least I'll do what I can to make the lives of these doomed creatures as comfortable as possible while they're still alive."  I never spoke with her about that subject again, and I assume that she is now a successful physician who tries to be good to animals. This memory ca

The "Mosaic Theory" and the Aftermath of Carpenter

by Matthew Tokson Recently, Orin Kerr has raised some interesting questions about how lower courts are using the "mosaic theory" of the Fourth Amendment after Carpenter v. United States . The mosaic theory generally refers to the idea that courts should look at police surveillance in the aggregate, rather than examining each instance of surveillance in isolation. So tracking someone's car for 3 months might require a warrant, even if tracking them for 3 minutes would not.  Kerr notes  that some lower courts have accepted the mosaic theory while others reject it, and wonders how many there are of each. As it happens, I have a coded database of every available decision citing Carpenter (for another project), and can speak to some of these questions. After doing so, I'll offer a suggestion for distinguishing two conceptions of the mosaic theory to make sense of what the lower courts have been doing.