Showing posts from March, 2021

Religious Exceptions and the Deformation of the First Amendment

  by Michael C. Dorf My latest Verdict column critiques Sidney Powell's motion to dismiss the defamation  lawsuit filed against her by Dominion Voting Systems. Some of the news coverage of Powell's motion has suggested that she is making the argument that her statements about the election being stolen from Donald Trump were so transparently ludicrous that no reasonable person could have believed them. That's not far off, although it's not exactly accurate either. As I explain, the motion to dismiss makes contact with reality in a few places, but it should ultimately fail. If political speech can ever be defamatory--and the SCOTUS cases indicate that it clearly can be in at least some cicrucmstances--Powell's post-election attacks on Dominion should trigger liability. During the course of my column, I note the irony that both Trump himself--through his suggestion that we "open up" defamation law--and right-wing ideologues--like Judge Silberman, whose cal

Why Do Super-Elite Universities Produce So Many Awful Politicians?

by Neil H. Buchanan Last Friday, I offered some observations about the pro-insurrectionist Senator Ted Cruz, drawing lessons from the one major life experience that he and I have in common: competitive college-level parliamentary debating.  I will not expand here on what I wrote in that column, but I want to use my two writing slots this week (today and Friday) to pick up on some issues that were raised on the comment board for that column.  In a pointed -- but refreshingly trolling-free -- discussion, three of our readers raised a number of interesting points.  Here, I want to take a stab at answering one reader's provocative question: "Whenever I think of a Cruz, a Hawley, a Franken, or some other Ivy alumni, I want to find someone to tell me just what those universities think their academic missions are. To create comedy writers? Hedge fund managers? Elected officials? Or just to reproduce more of themselves? Whatever the weaknesses of the noblesse oblige of an E

Government Purchases of Sensitive Private Data

By Matthew Tokson Carpenter v. United States  held that the government must get a warrant before collecting an individual’s cellphone location data. Such data would allow the government to constantly track citizens, revealing their activities, associations, relationships, purchases, and countless other details about their lives. But what if the government can just purchase similar data from a private vendor? Does the Fourth Amendment regulate government purchases, or has the government found a valid way around Carpenter ’s restrictions? These are important and very new questions, and they've begun to attract a lot of scholarly attention. They arise because several government law enforcement agencies have purchased private location data from data brokers in the wake of Carpenter . The Department of Homeland Security , the IRS’s Criminal Investigations Division , the Defense Intelligence Agency , and several other federal and local law enforcement agencies have purchased location da

The Perversely Fascinating Ted Cruz (It's Not About Cancun)

by Neil H. Buchanan For someone possessing whatever is the opposite of charisma ( repellency , maybe?), Ted Cruz has made it very far in life.  Cruz, moreover, has succeeded not in one of the areas in which being a jerk can be a positive, which is what allows Martin Shkrelli or Elon Musk or Roseanne Barr to enjoy at least temporary success.  No, he actually has somehow convinced millions of people to vote for him on multiple occasions. That is not, of course, as uncommon as I made it seem just now.  There are plenty of politicians of national stature who are simply awful personally, from former Democratic congressman Barney Frank and still-Governor-for-now of New York Andrew Cuomo to Senator Rand Paul or the late Senator Strom Thurmond.  For as long as there have been parties, and especially in current Republican politics, winning general elections is not the real game.  All Cruz had to do was work behind the scenes to grab his party's nomination and, in a state like Texas, he was

(At Least) Nine Conceptions of Common Law in One Takings Case

  by Michael C. Dorf Monday's SCOTUS oral argument in Cedar Point Nursery v. Hasid   implicated a bewildering array of conceptions of the common law of property. In today's essay, I hope to shed some light on what's at stake. I offer a few normative points, but my chief goals are analytic. Here's how I summarized the legal conflict last fall when the Court granted cert:  A longstanding regulation in California grants union organizers access to agricultural workers on private property. The rule allows such access for up to three hours per day for up to thirty days at a time for up to four thirty-day periods per year. Union organizers used the rule to gain access to privately owned strawberry fields and orchards growing grapes and citrus fruit. The owners of these properties complained that the access was disruptive and, more importantly for present purposes, unconstitutional. They claimed that the state, by empowering the labor organizers to gain access to their propert

Voter Fraud, Voter Suppression, and Attacks on Stacey Abrams: Weird Bothsideism

by Neil H. Buchanan One of the practitioners of the dark side of public opinion polling is Frank Luntz, who has for a long time been many reporters' go-to source as a "Republicans pollster."  Luntz is most famous within the small group of people who pay attention to these things as the inventor of the term "death tax" as a substitute for the estate tax.  Does it matter that the estate tax is not a death tax, or that there is no such thing as a death tax, or that even if there were such thing as a death tax (and if the estate tax were an example of it), it would actually be worse if wealth were taxable at any time other than death? Not according to Luntz, who once summed up his basic approach with disturbing candor: "A compelling story, even if factually inaccurate, can be more emotionally compelling than a dry recitation of the truth."  His oeuvre includes the usual run of Republican political correctness, from referring to the "Democrat Party&q

Judge Silberman Laments Reality's Liberal Bias

  by Michael C. Dorf Dissenting in Tah v. Global Witness Publishing last week, Senior DC Circuit Judge Laurence Silberman mostly disagreed with the way in which his colleagues applied New York Times v. Sullivan in favor of the defendant Global Witness--a human rights organization that was sued for defamation by two Liberian officials based on the defendant's publication of a report falsely implying that they had accepted bribes. The majority concluded that the plaintiffs' complaint did not allege facts sufficient to meet the "actual malice" standard that NYT v. Sullivan requires public officials to satisfy. Judge Silberman disagreed. Not content to explain why he thought the complaint ought not to have been dismissed, Judge Silberman also took the opportunity to say that he thought NYT v. Sullivan was wrongly decided and ought to be overruled. That portion of his dissent is, to put it politely, odd. In a forthcoming Point/Counterpoint exchange with Berkeley Law Prof

The Racist Roots of Originalism

 By Eric Segall In an important new article in the American Political Science Review (behind a pay wall), Calvin TerBeek has uncovered substantial data to suggest that what we think of as modern originalism was motivated first and foremost by political and legal opposition to Brown v. Board of Education.  Today's judges who self-identify as originalists will likely ignore this scholarship but originalist academics should not. They need to explain how a contemporary movement born in the racism of the 1950's and 1960's has evolved beyond that racism. At the end of this post, I'll offer a few tentative thoughts on race and originalism today.  

The Role of Fungibility in the Spending Clause Challenge to Restrictions on State Aid in the American Rescue Plan Act

  by Michael C. Dorf Section 9901 of the American Rescue Plan Act of 2021 appropriates approximately $220 billion to state, local, territorial, and tribal governments. Most of those funds (over $195 billion) go to states, raising the question whether the conditions placed on how states use those funds are constitutional. Because of a highly dubious precedent of the Supreme Court, there is a substantial possibility that a key condition could be invalidated. Here I'll explain why one of the arguments for the invalidity of the condition is especially bad.

Democrats' Voting Reform Proposals Must Be Enacted, but Even That Might Not Be Enough

by Neil H. Buchanan   This week, Senate Democrats officially proposed their version of the For the People Act, which has already passed the House as H.R. 1.  That bill would substantially de-fang the two anti-democracy strategies that Republicans have been abusing for years: gerrymandering and voter suppression.  In 2021, both of those strategies are already being pushed even further by Republicans, as they plan to take away even more House seats when adopting legislative maps in response to the 2020 census, and as Republicans in state legislatures across the country advance an onslaught of voter suppression laws. There are many moving parts in the Republicans' long-running strategy to disenfranchise non-Republican voters, one of which was Donald Trump's extensive, bare-knuckled effort to rig the census.  Running through the full list of Republican affronts to representative government would be both too time-consuming and beside my point here.   Nonetheless, it is worth beari

Are the American Rescue Plan Act's Debt Cancellation Payments to "Socially Disadvantaged" Farmers and Ranchers Unconstitutional?

  by Michael C. Dorf My latest  Verdict column considers and rebuts the main critiques that Republicans have offered to justify their opposition to the $1.9 trillion American Rescue Plan Act of 2021 (American Rescue). I argue that while everyone can find something objectionable in a large omnibus measure, the overall arguments are misguided. The law is needed despite the stock market boom, because of the uneven distribution of the recovery; it is unlikely to cause runaway inflation; most of the money does indeed target pandemic-related problems, but there is in any event, no obligation for Congress to address only one problem in any law; and although there will undoubtedly be some waste, fraud, and abuse, effective implementation of various safeguards can keep those to tolerable limits. In this column, I want to consider one of the Republican objections to some specific provisions that I do not discuss in the Verdict  column: its reliance on racial and ethnic categories for distributi

The Heroes of the Vaccine Miracle are the Scientists, not the Politicians (Least of All Trump)

by Neil H. Buchanan A first dose of the Pfizer vaccine entered my arm at 9am today.  This is exciting, and I look forward to more and more people being fully vaccinated over the next few months.  Sooner is better, of course.  I do worry that people are taking the mere existence of the vaccines as an excuse to go back to normal too quickly, but having the vaccines is clearly better than not having them. Having written a column just this past week about Donald Trump's absurd attempts to take credit for the existence of the anti-COVID vaccines, I want to add some thoughts here not only about the politics in play but about the underlying science as well. Bottom line: The case for Trump-as-vaccine-savior is even weaker than it seemed, which is saying a lot.  Why?  Because science.  (And by the way, scientific research has been dismissed and chronically underfunded by Trump, Republicans, and even some Democrats).

Should Lady Justice be Blind to Identity When Judges Are Selected? A Response to Professor McGinnis

 By Eric Segall At the Law and Liberty Website last Thursday, Professor John McGinnis of Northwestern University posted an essay about the relationship between judicial nominations, identity, and Lady Justice. McGinnis seems quite troubled by President Biden's pledge to appoint more diverse judges to the federal bench and the "left's obsession" with "representativeness." There is a lot wrong with this essay, which covers numerous broad topics relating to judging but in the interests of time and space I will just point out a few of the more outrageous claims in McGinnis' post.

Taking Credit Where It Is Not at All Due: Vaccines

by Neil H. Buchanan If we learned nothing else from Donald Trump's four excruciating years occupying the White House, it is that he refuses to own anything bad and tries to take credit for everything good.  As is so often the case with Trump, this is both "what all politicians do" and not at all like that.  In a world of shameless self-promoters, he stands alone in his insistence on saying with a straight face that he alone can fix things -- and that it is everyone else's fault when he fails to do so. The latest example of this is Trump's Tweet-substitute statement insisting that he receive all of the credit for the existence of COVID vaccines.  Perhaps the best headline on this story was from The Independent : "Trump issues statement trying to take credit for 'China virus' vaccine: 'I hope everyone remembers.'"  (Of course he uses a racist framing.  Because Trump.)  The sub-headline helpfully adds: "Ex-president claimed that if it

The "Revival" Alternative to Test Legislation Like the New Arkansas Abortion Ban

  by Michael C. Dorf A new law passed by the Arkansas legislature and signed by Governor Hutchinson banning nearly all abortions clearly violates governing Supreme Court precedent. Indeed, that is its point. Hutchinson and other pro-life politicians in Arkansas expect that lower courts will enjoin the law's enforcement but that they will then have the opportunity to seek review in the US Supreme Court, which, they hope, will use the case as the opportunity to fully overturn Roe v. Wade , rather than merely scale back that precedent's scope, as in other  SCOTUS abortion cases over the last three-plus decades. Is it legitimate for a legislature to pass and a governor to sign legislation that they know to be unconstitutional under existing precedents? That is not exactly a new question. I addressed it in a 2006 column , when South Dakota did more or less what Arkansas is doing now. As I observed then, if there is a reasonable prospect that the Court would change the precedent, the

Save the States: How Should the Federal Government "Help" Struggling State and Local Governments?

by Neil H. Buchanan     One of the best bits of below-the-radar news recently is that the COVID relief bill contains $350 billion in direct aid for state and local governments.  That bill is not a law yet, but it should soon pass the House and make its way to the Rose Garden for a signing ceremony later this week.  The one-time $1400 checks and extended unemployment benefits have received most of the attention -- along with what was not in the final bill: a minimum wage increase -- and rightly so, but the sub-federal aid was an essential part of the package.   And the news is even better for state and local governments, because the bill also includes money to support local capital projects that would otherwise have been cut.  Moreover, with the Biden-led federal government now actually taking on pandemic-related responsibilities that had fallen to ill-funded states and cities under the Trump Administration's denialist approach, those governments will simultaneously receive direct

Old-School Intentions-and-Expectations Originalism in the Nominal Damages Case

  by Michael C. Dorf Earlier today, in Uzuegbunam v. Preczewski , the Supreme Court ruled 8-1 to permit legal standing and against the argument that the plaintiffs' claim was moot. The plaintiffs were students at a state college that allegedly violated their First Amendment rights by pretty severely restricting where they could hand out religious literature or even discuss their religious views. But the college repealed the speech-restrictive policy and the plaintiffs had not sought compensatory or punitive damages. They had, however, sought "nominal damages," meaning some token amount of money--typically a single dollar--in recognition that their rights were violated. The question before SCOTUS was whether that request satisfied the constitutional requirement for standing. Under the Court's precedents, to establish standing, a plaintiff must allege (1) injury that is (2) traceable to the defendant's conduct, and (3) redressable by a favorable judgment. As Justice

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

 By Eric Segall Last Wednesday on this blog , I wrote about the efforts by Students for Fair Admissions (SFAA) to persuade the Supreme Court to rule that colleges and universities nationwide may not use race at all in their admissions decisions. SFAA is seeking review in the Supreme Court of the First Circuit's decision that Harvard University's admissions program does not unlawfully discriminate on account of race. Although the governing law pertaining to the use of race in university admissions stems from two decisions handed down the same day in 2003, both of those opinions effectively embraced Justice Powell's lone opinion in Regents of the University of California v. Bakke , the first Supreme Court case on the subject. In Part I of this series , I detailed how Justice Powell applied strict scrutiny to all classifications based on race, even those designed to foster racial equality. He also rejected all of the asserted compelling interests-- except the school's de

A Preliminary and Barely Data-Based Observation About SCOTUS Polarization

by Michael C. Dorf Yesterday the Supreme Court handed down two opinions that divided the Court on ideological grounds (although Justice Kagan joined the Republican appointees in one of them). The cases involved immigration- -which is often ideologically divisive--and the Freedom of Information Act --which sometimes is. My interest here is not so much in the merits of either case as it is on the evidence for increased polarization that they supply. Justice Breyer authored the principal dissent in each of yesterday's cases. That's striking. Justice Breyer is not a frequent dissent-writer. The notion that he would write two dissents in one day in two relatively-low-temperature cases suggests something is up. That something, I would suggest, is increased polarization. Consider (based on data available here ) that in the Supreme Court terms from Justice Kagan's addition through Justice Kennedy's retirement, Justice Breyer dissented in, respectively 5, 5, 4, 4, and 3, or an a

Cuomo, Tanden, and Other Embarrassing Allies

by Neil H. Buchanan     The political wheel of fortune has again put Democrats in a position where they have had to decide whether to stand by a few of their compatriots who are difficult to defend, or instead to jettison excess baggage and move on.  After weeks of backing his nomination of Neera Tanden to be his budget director, President Biden ultimately decided that she was not worth the fight.  Meanwhile, whether New York Governor Andrew Cuomo will survive his emerging scandals is currently impossible to predict.   Every political scandal is different, of course, yet there is a sameness to the genre.  Even so, there continues to be an enormous difference between the way that Democrats handle their embarrassing colleagues and the way that Republicans bulldoze through their much worse situations.  Are there any lessons here?  

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 f

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 politi