Showing posts from May, 2021

Race, Religion, and Supremely Pernicious Constitutional Interpretation

 By Eric Segall One of the most important and yet under-discussed Supreme Court cases ever decided is Washington v. Davis . This dispute involved civil service tests used by the District of Columbia police force. The tests had disparate negative effects on African Americans, though there was no evidence they were adopted for that purpose. The issue was whether the government's use of these tests violated the (non-textual) equal protection principle of the Fifth Amendment. Given how many facially neutral laws burden racial minorities, this was a potentially country-changing question because the holding would also apply to the (textually based) equal protection clause of the Fourteenth Amendment.  The enormity of the case did not escape Justice White, who wrote the opinion for the Court holding that to make out an equal protection violation, whether under the Fifth or Fourteenth Amendments, plaintiffs must show that the government intended to discriminate. White wrote the following:

Democrats Continue to Allow the Baseline Presumptions to be Set By Republicans

by Neil H. Buchanan   Imagine that you are selling a car, or a house, or anything that requires face-to-face negotiations.  Your asking price is public knowledge, but you also have an "I hope I can at least get this much" price as well as an "I hope I don't have to go that low, but I will if necessary" price.  You receive interest in your item from multiple parties, and you begin to negotiate with one of the possible buyers.  You reduce your price in increments and the other side comes up, but ultimately, the buyer never reaches even your squeal point.  Negotiations break off, and the potential buyer walks away. What do you do?  It is possible, under some circumstances, that you will lower your asking price.  It is also possible, however, that you will simply go back into the market with your original price and look for the next buyer.  What you would not do is to set your price at the last amount that the buyer who walked away offered you.  (Why did you turn

Does Netanyahu Realize that Both Conquest and Deterrence are Unlawful?

  by Michael C. Dorf Last week, before a ceasefire was reached between Israel and Hamas, Prime Minister Benjamin Netanyahu offered the following explanation for Israeli military policy with respect to Gaza: "You can either conquer them — and that’s always an open possibility — or you can deter them. We are engaged right now in forceful deterrence, but I have to say, we are not ruling out anything."  Much of the critical public reaction to that statement understandably focused on the conquest option. To "conquer" Hamas would presumably mean not simply that Israeli troops would cross the border into Gaza to engage in a ground war for the purpose of degrading the capacity of Hamas to strike Israel with rockets or launch incursions through tunnels, but that Israel would return to the status quo that prevailed prior to the August 2005 Israeli withdrawal and once again occupy Gaza with troops. Indeed, to conquer implies more than merely to occupy , which is, at least in

In Defense of Viability

 by Sherry F. Colb Earlier this month, the U.S. Supreme Court granted cert. in Dobbs v. Jackson Women's Health Organization , a case that will consider the constitutionality of a Mississippi law that bans most abortions after 15 weeks. By taking the case, notwithstanding the absence of any reason to think the law is valid under existing doctrine, the Court has signaled its willingness to reconsider the holdings in Roe , Casey , and their progeny guaranteeing a right to abortion up until viability. Today on Verdict , Michael Dorf explains how Dobbs poses a direct threat to the viability line in ways that other post- Roe SCOTUS cases did not.   I want to suggest here that the viability line has positive attributes that the Supreme Court has failed to consider and will likely continue to fail to consider, even as it discards the viability framework and pretends that viability was never as central to the abortion right as it in fact was. What is viability? It is the point at which a f

Democracy Killers: A Death Blow by Trump or Exsanguination by Cheney?

by Neil H. Buchanan Congresswoman Liz Cheney is mirroring her former colleagues who started the Lincoln Project by breaking with Donald Trump.  The Lincoln Project's founders did come to be heavily criticized for setting up what amounted to a grift -- even before the group was rocked by some internal scandals -- but the question most pertinent to their political work was whether they were actually having any impact.  There is no definitive way to confirm or de ny any electoral impact that they might have had, but I have serious doubts that they were doing anything more than preaching to the choir. One thing that they did do, however, was expand their attacks beyond Trump himself, arguing strongly that voters needed to cast out Republicans in order to force a reckoning within a party that had already become a cult of personality.  Again, we do not know whether that mattered at the ballot box (especially given that Republicans picked up House seats and saved some wobbly Senate se

Pro Fetus But Anti-Life: The Sorry State of Child and Family Care in the United States

 By Eric Segall Last week the Supreme Court announced it would hear a challenge to Mississippi's ban on abortions after fifteen weeks of pregnancy. There was no circuit split, the law clearly violates binding Supreme Court caselaw, and even the ultra conservative fifth circuit struck down the ban. As many folks have observed, the Court almost certainly didn't take this case just to affirm the decision below.  My guess is the Court will use the case to start to unravel all or most constitutional protections for a woman's decision to terminate her pregnancy. This post is not about whether the right to choose should be constitutionally protected but about the dire consequences for women who will be forced to carry fetuses to term against their will and how badly America compares to the rest of the free world when it comes to providing assistance to women and their families once a baby is born. One thing is certain: other than focusing on the preservation of the fetus, the pro

Federal Courts Exam 2021 (featuring state-law Bivens action, international adjudication, state habeas, and SCOTUS term limits)

  by Michael C. Dorf In keeping with my usual custom, below I set forth the exam I administered to my Federal Courts students last week. They did very well. I'm done grading the real exams, so I won't grade (although I welcome) answers in the comments. As usual, the exam was an open-book take-home that students were given 8 hours to complete, with a total word limit of 2500. Enjoy!

Adding Critical Race Theory to the Right's List of Cultural Grievance Distractions

by Neil H. Buchanan Even things that should no longer surprise can still be surprising.  A month or so ago, I heard for the first time that Republican legislators in many states (including mine, where I teach at a public university) have decided that Critical Race Theory is a new target, with the possibility that Republicans would outright order teachers never to talk about that theory.  Why was I surprised?  I have no idea, especially because it fits so obviously into the longstanding panicked White grievance agenda that Republicans have been amping up this year. Despite the targeting of Crit Race being undeniably bad news, I had not given it much thought, except in making a mental note that this would be rather easy to handle if any professor were ever confronted with a new prohibition.  There were frankly too many other roiling issues that have immediate real-world impact for me to respond to this new culture war item by doing anything more than muttering quietly: "Well, of c

The Sixth Circuit Protects a Professor's First Amendment Right to Abuse His Students

 by Sherry F. Colb Two months ago, the U.S. Court of Appeals for the Sixth Circuit, in an opinion by Judge Thapar, ruled that a professor at a state institution has a First Amendment free speech right to deliberately misgender his student. I want to suggest here that the Sixth Circuit’s decision was not just wrong but outrageous. As a professor, I am a big supporter of academic freedom. Whenever I hear a story about a professor saying something offensive in (or sometimes outside of) the classroom and then getting into trouble, I typically find myself on the side of the professor’s right to free speech. If academic freedom and free speech more generally mean anything, they mean that people can voice viewpoints that others find offensive, in teaching, in scholarship, and otherwise.  I am dismayed by news that that a professor at one or another university has “quit” after failing to fall in line regarding some controversial issue. I might disagree with what the professor has said or done

How Badly Did the Biden Administration and the CDC Blow It?

by Neil H. Buchanan By pretending that there were only scientific decisions to be made in dealing with COVID-19, the Biden Administration has allowed non-politicians to make an extraordinarily consequential political decision.  I completely understand why Biden's people want to make it all look apolitical, but it is not.  And because the politics of mask-wearing was already so badly distorted by misinformation, this dereliction of duty could potentially lead to a real disaster. Before we get there, however, it is important to emphasize that this is the first and only genuine blunder by the Biden team.  They were having an especially impressive run when it came to dealing with the pandemic, particularly in straightening out the messes that the previous administration left behind.  And because the scientific community had done such a great job in bringing vaccinations to the public so quickly (for which, as I explained recently, Donald Trump deserves at best minimal credit becau

Gun Control, the Second Amendment, and Originalism's Folly

 By Eric Segall Although the Supreme Court will decide a few nationally important cases this term, such as one relating to the claims of a religious organization that it get preferential treatment under the free exercise clause , and yet another case challenging the validity of the Affordable Care Act, there are relatively few blockbuster cases coming down this term. Next year, however, expect a big abortion case, and the Court has already decided to hear a challenge to New York's law regulating who can carry guns secretly in public. Second Amendment advocates allege that the law is unconstitutional because people have to present a special reason to carry guns, above and beyond a generalized need for self-defense. New York argues that the law is necessary for public safety. The Justices will, of course, pay lip service to originalism when they decide this case, but the nature of "arms" themselves and American society today are so different from colonial America that maki

Ancient Rome? Italy? Hungary? Envisioning a Post-Democratic United States

  by Michael C. Dorf How will future historians chronicling our current age write about the 2020 election and its aftermath? Conventional wisdom holds that it will either be described as the narrow aversion of a catastrophic second term for Donald Trump or an unheeded warning and thus at most a pause. If those turn out to be the options, of course I hope that the next few years play out in a way that puts us in the first scenario. However, I want to suggest a third--and still darker--option. Consider the following opening to a future history of the by-then-formerly-democratic United States. During the 2020 campaign, candidate Joe Biden warned that a second term for Donald Trump would change the country in a way that would do permanent harm, whereas his election would restore U.S. institutions and values that had been damaged by Trump but not irreparably so. Biden's warning was both right and wrong. Biden's election and the policies he pursued did temporarily restore the status

Cheney's Supposed Long Game and the Death of Democracy

  [Note to readers: In my new Verdict column today , I ridicule the panic about "cancel culture" on the American right.  Basic message: This is the "political correctness" panic on steroids, and it has become a parody of itself surprisingly quickly.  And if you disagree with me, you are guilty of trying to cancel me, you woke McCarthyite censorious silencer!  My column below, by contrast, discusses a topic that has genuine content.]   by Neil H. Buchanan Is there renewed hope, now that Liz Cheney is unleashed and on a mission to stop Trump and Trumpism?  Not really, but it is important to try to understand what is and is not happening to our constitutional order.  New and interesting things are indeed afoot, but there is very little reason to think that the bottom line will get any better.  

The Wisdom of Al Sharpton and James Madison: Crime Control and Police Accountability Are Compatible

  by Michael C. Dorf In 2004, The Onion ran a headline that read: "Homosexual Tearfully Admits To Being Governor of New Jersey. " It was a reference to a sex scandal that engulfed then-Governor-of-New-Jersey Jim McGreevey. The joke was that being a gay man was not embarrassing (as of course it ought not to be, although McGreevey's having been closeted was, at the time, a too-common course of action for gay politicians), that even having an extramarital affair was not especially problematic, but that being governor of the Garden State was indeed shameful. Yesterday's news reminded me of that Onion headline. In response to news stories linking the ransomware attack on the Colonial fuel pipeline's computers to lax Russian government enforcement or even tacit Russian government encouragement, the hackers responsible for the attack, who operate under the moniker Darkside, apparently released  the following statement on the dark web: "We are apolitical, we do not p

Blaming the Victims of Rigged Elections in 2022 and 2024

by Neil H. Buchanan Will Democrats pass major bills at the federal level to protect voting rights?  The answer to that question depends ultimately on the one or two Senate Democrats who continue to insist that the filibuster in its current form is sacrosanct (even though it has been changed throughout the country's history) and that there is a way to get ten Republicans to vote for something to stop Republicans from disenfranchising Democratic voters.  Right. As I wrote two months ago, even the enactment of H.R. 1 and H.R. 4 (the latter of which, named for former Rep. John Lewis, would undo most of the damage from Shelby County v. Holder ) might well be insufficient to save democracy in the United States.  Still, that there is even a sliver of hope that the these bills might yet be passed by suspending or altering the filibuster rules, it is good news (of a minimal sort) that the Senate Budget Committee today held a "markup" session for H.R. 1.  If a good outcome is goi

Reforming the Court: Five Non-Partisan and Much Needed Proposals

 By Eric Segall The thirty-six member Supreme Court reform commission is unlikely to suggest, much less try to implement, the important goals of ending life tenure or altering the number of Justices on the Court to provide more partisan balance. Both changes have some support among lawyers, law professors, and politicians but neither is politically viable at this time. There are, however, a number of other recommendations the commission should discuss, debate, and then propose.  Although it is at best unclear whether the commission is supposed to make recommendations, nevertheless, as Founder Edmund Randolph said when describing the 1787 constitutional convention, which was supposed to end with amendments to the Articles of Confederation but resulted in an entire new Constitution: "There are great seasons when persons with limited powers are justified in exceeding them, and a person would be contemptible not to risk it."  The Supreme Court reform commissions should take hee

SCOTUS, Guns, and Police-Civilian Interactions

  by Michael C. Dorf My professional interest in the Second Amendment case the Supreme Court recently added to its docket concerns the question whether there are textual, historical, doctrinal, pragmatic, or other grounds for distinguishing between firearms possession in the home--protected by the Court's 2008 and 2010 decisions declaring the Second Amendment an individual right--and firearms possession outside the home. In a symposium article in 2008 , I suggested that the answer is probably not but that the matter is not free from doubt. I offered a number of means by which the Court, if it so wished, could limit the right to the home. The following year, Prof Darrell Miller wrote a longer article that gestured in the same direction. I very much hope that the Supreme Court accepts the suggestion offered by Professor Miller and me, but I'm not optimistic. I suspect that the Court will find at least some right to carry firearms in public--either concealed or openly--sufficien

Why I Will Always Despise Bill Clinton

by Neil H. Buchanan   Last week, a columnist in The Washington Post wrote a very important piece that brought back some very bad memories.   Radley Balko noted that we have now reached the 25th anniversary of Bill Clinton's signing of AEDPA, the Anti-Terrorism and Effective Death Penalty Act of 1996.   Balko began the piece by recounting that Clinton expressed concern in 2011, the day after a man named Troy Davis was executed by the state of Georgia, about the railroading of Davis.  Clinton, well into his ex-presidency, could not understand why the extensive evidence that Davis had been wrongly convicted was not being heard in a federal court.  Indeed, Clinton called it "an unusual case," but as Balko demonstrated, it was no such thing.  It was, in fact, the direct result of how AEDPA was designed to work.   During my clerkship on the 10th Circuit in 2002-03, AEDPA was the bane of our existence.  We (and I think I can speak for every clerk I knew who ever expressed an

Politicians' Career Options and Partisan Affiliations (No, this column is not only about Liz Cheney)

by Neil H. Buchanan Ever since January 6 and the Trump-inspired attempt to overthrow America's constitutional republic, one of the few strong voices on the political right condemning Donald Trump has been Liz Cheney, who as of this writing still holds the third-ranking position in the Republican leadership in the U.S. House.  Not only has Cheney refused to tone down her condemnation of Trump, she has even said bluntly that she will not support Trump if her party nominates him to run again in 2024.  Compared to Mitch McConnell's "I'll support the Republican nominee, whether it is Trump or anyone else," Cheney's approach is more than refreshing. In my Dorf on Law column last Thursday , I wrote some guardedly positive things about Cheney.  After noting the inescapable fact that she is awful on policy -- at least as bad as one would expect Dick Cheney's daughter to be -- I held her up as someone who has become a genuine profile in political courage.  I shoul

Defective Democracies (and Promotion of a Conference)

  by Michael C. Dorf On Friday, I'll be participating in and delivering a keynote address at a one-day conference to celebrate and promote a new book on constitutionalism. The conference, which is jointly sponsored by Pontificia Universidad Javeriana and Cornell Law School's Berger program is occurring "in" Bogota and Ithaca, but really in cyberspace and all over the world. You can register for the webinar (for free) here . My lecture will be from 10:05 am to 11 am (Eastern time), but the conference opens at 9:15 and includes an excellent lineup. At the conclusion of today's brief essay, I've set out the complete schedule. For now, I'll briefly preview my lecture, which is titled "The Role of Constitutional Courts in Defective Democracies." My thesis is that they play roughly the same role in defective democracies as in reasonably well functioning democracies. Somewhat more provocatively, I'll argue that I have some expertise on the subject

Cursing Cheerleaders, Constitutional Interpretation, and Law as Social Policy

 By Eric Segall Last Wednesday, the Supreme Court heard oral argument in a case where a student was punished for social media speech she posted after she didn't make the varsity cheerleader team. There has been a lot already written about the case and how hard it will be for the Justices to decide it in a way that both respects the rights of students and allows school officials to take appropriate disciplinary action when necessary. Whatever the Court decides, and this case is truly hard as I will explain below, law will have very little to do with the ultimate decision. And that dirty little secret reveals important truths about much constitutional litigation and possibly how interventionist we want judges to be when the law runs out. The cheerleader in this case, referred to in the complaint as B.L., tried out for the varsity cheerleader team but, alas, was told she would have to settle for the JV team for another year. She was upset that another girl, who didn't have to be