Showing posts from October, 2021

Justice Thomas' Contradictions: Of Decency, Empathy, and the Judicial Role

 By Eric Segall Last week on my podcast Supreme Myths, Dahlia Lithwick talked at length about the need for judges to display empathy and decency in their judicial opinions and to show that they at least appreciate the problems of people unlike themselves. As an example, she pointed to Justice Kagan's tendency to write opinions in the second person: "Imagine yourself...." That kind of empathy tells the parties that the judge understands their points of views and may make it just a little easier for one of the parties to deal with losing the case. Such sensitivity also provides a role modeling exercise for people reading the decisions.  Empathy when judging does not mean deciding a case in a way inconsistent with the law but rather a way for judges to show that the litigants have at least been heard. There is also a wide-ranging literature on the role of emotion and empathy in legal reasoning but this blog post is not about that. There can be no doubt that Justice Clarenc

Some of the Weakest Parts of the Conservative Anti-Tax Canon Were Usefully Gathered Into One Silly Op-Ed

by Neil H. Buchanan   Although it is already on political life support (due to -- no surprise -- reported opposition from Joe Manchin), an important and quite appealing tax-the-ultrarich proposal was announced this week.  Dubbed (both accurately and for maximum political impact) the Billionaires Tax, it is a limited repeal of a longstanding tax giveaway to the tiny number of lucky people who can avoid receiving their incomes in the form of salaries or wages -- that is, extremely wealthy people. Soon after Oregon Senator Ron Wyden announced the plan, I received an email from a reporter for a financial network, asking if I could discuss the constitutionality of the Billionaires Tax.  I thought: "Wait, what?  This is a tax on income .  What could possibly be the constitutional question?"  But sure enough, the Republicans' responses to the plan have included, well, not exactly arguments but more like hopeful rumblings that somehow, maybe this is unconstitutional.  Good luck

Will the SB8 Case Allow SCOTUS to Appear Moderate? If So, What Follows?

  by Michael C. Dorf   (**Updated with link to our amicus brief) Later today merits briefs will be filed in the expedited SCOTUS cases on SB8. So will amicus briefs, including one from me and other federal courts scholars (Erwin Chemerinsky, Barry Friedman, Leah Litman, and Fred Smith). Meanwhile, I have a new Verdict column , in which I argue that the SB8 litigation is, in important ways, about the Court's own authority. At the end of the column, I mention prior episodes in which political actors--from Andrew Jackson to Little Rock segregationists to Richard Nixon--threatened to defy the Court. Allowing Texas to circumvent abortion precedents while they remain on the books would embolden further acts of defiance, I suggest. Here I want to speculate a bit about the public reaction we might anticipate to a possible outcome of the litigation. My speculation is inspired by a conversation I had yesterday with NY Times reporter Adam Liptak. He posed (more or less) the following possibi

What Is So Bad About Trolling (Other Than Everything)?

by Neil H. Buchanan Here at Dorf on Law , we have witnessed a bit of an uptick in trolling of late, which happens every now and then.  Our comments board is never particularly active (between one and ten comments per post being the norm), and the quality of the comments is often excellent and thought-provoking.  Moreover, once a troll reveals himself (and I readily admit that I am assuming that the trolls are male, based on the overwhelming weight of the evidence in the world), it is easy enough simply to put an offender on one's mental do-not-bother-reading list.  In any event, they usually leave (most likely due to boredom, given the relative sedateness of our community) after a few days or weeks. Of course, even the most annoying of those occasional incursions into our genteel little corner of the all-powerful series of tubes  are nothing compared to the mosh pits of Twitter and everything else online.  Elsewhere, women  and other disfavored victims are doxxed, websites are ove

Why SCOTUS Didn't Treat SB8 Like a Capital Case

by Michael C. Dorf On Friday, the Supreme Court ordered expedited merits briefing in United States v. Texas , the federal government's challenge to SB 8. Oral argument is set for November 1. The order directs the parties to address their arguments to the procedural issues in the case: "May the United States bring suit in federal court and obtain injunctive or declaratory relief against the State, state court judges, state court clerks, other state officials, or all private parties to prohibit S.B. 8 from being enforced?"  For those ( including me ) who urged the Justices to vacate the Fifth Circuit's stay and thus reinstate the district court's preliminary injunction against Texas and its agents, there are two pieces of good news here. First, the fact that the Court decided to grant certiorari--which requires four votes--suggests that the four Justices who dissented from the Court's failure to enjoin SB 8 when it came before them via private litigation last

When Is a Crisis with Intergenerational Effects Not an Intergenerational Crisis?

by Neil H. Buchanan   In March 2020, Texas's troll-cum-Lieutenant Governor Dan Patrick made news by saying that old people should be willing to die so that their kids and grandkids would not suffer a loss of income.  Am I trying to score cheap points by exaggerating or distorting what he said?  I might be putting it less politely, but that was most definitely his point.  Appearing on one of the evening Fox News dumpster fires, Patrick said : No one reached out to me and said, "As a senior citizen, are you willing to take a chance on your survival in exchange for keeping the America that all America loves for your children and grandchildren?" [But if] that is the exchange, I’m all in. ... I just think there are lots of grandparents out there in this country, like me, I have six grandchildren, that what we all care about and what we love more than anything are those children. ...  So my message is let’s get back to work, let’s get back to living. Let’s be smart about

Judge Bill Pryor and the Law Clerk: Cancel Culture, Judicial Ethics, and Racism

 By Eric Segall There is little dispute that cancel culture in legal academia and elsewhere is at the least controversial and at the most quite dangerous to freedom of speech values and academic freedom. In just the last few weeks, a University of Michigan professor got in trouble for showing the 1965 film Othello starring Sir Laurence Olivier (considered by many the greatest actor ever) in blackface. The Chaired Professor issued two apologies and had to cancel classes after students complained. And, there was yet another major dust up at Yale Law School involving a student who invited others to a "trap house" party where  "Popeye's chicken, basic-bitch-American-themed snacks (like apple pie, etc.)" and hard and soft drinks would be available.  The term "trap house," according to Eugene Volokh, " originally referred to crack houses in poor neighborhoods, has,  according to Urban Dictionary , 'since been abused by high-school students who like

The Political Psychology of Fiscal Numerology - Debt Ceiling Edition

  by Michael C. Dorf Last week I joined Congressman John Yarmuth as a panelist in a program moderated by former Congressman Steve Israel as well as my Government Department colleague Professor Doug Kriner and Erin King Sweeney, who serves as senior associate director of Cornell's Institute of Politics and Global Affairs, which sponsored the event. The panel discussion had been set up a week earlier, when it appeared that it might be occurring just as the global economy was melting down under imminent threat of a U.S. default on its debt obligations. The short-term increase in the debt ceiling somewhat alleviated the sense of immediately pending doom, but the timing was nonetheless noteworthy because earlier that day Congressman Yarmuth--who chairs the powerful House Budget Committee--announced that he would not seek re-election in 2022. Although Yarmuth is the sole Democrat in Kentucky's delegation, his seat is unlikely to turn red even after redistricting, because his district

Abortion and the Free Exercise of Christianity

 by Sherry F. Colb At times, it must seem to many Court-watchers that abortion is its own body of law, separate from the other areas in which the nine Justices issue opinions. And this term, the Court will be hearing an abortion case, Dobbs v. Jackson Women's Health Organization , a case presenting the question whether banning abortion starting at fifteen weeks violates the Constitution. But for this Court, its view of abortion is very much linked to its view of a whole other body of law, the Free Exercise of Religion in the First Amendment to the Constitution. I have an article coming out in the North Carolina Civil Rights Law Review in the Spring that explores the Court's thinking in the realm of religious liberty. But here, I will offer a brief description of my theory and then apply it to abortion and show that it fully explains where the Court is heading on the right to choose.

If Changing Judges Changes Law, Is the Supreme Court a Court of Law?

 By Eric Segall Retired Judge Richard Posner once said that,  “if changing judges changes law, then it is not clear what law is.” There can be no dispute that the Supreme Court of the United States changes law all the time and on extremely important questions that affect all fifty states and over 300,000,000 people. These changes most often occur without any amendments or newly discovered historical materials. I demonstrate this claim below and then offer a few observations about what it all means.

Justice Between Generations in an Unjust World

by Neil H. Buchanan   I am back to thinking about intergenerational justice.  This is a topic about which I have written extensively over the last decade-plus, and because I am once again delivering some public and academic lectures around the UK and EU this Fall, I have had reason to return to writing about it -- with the further goal of at long last finishing my book project: What Do We Owe Future Generations?   Yesterday, I published a new Verdict column: " Three Threats to Future Generations: Should COVID-19 Change Our Thinking About Climate Disaster or the End of Democracy? "  As I will shortly explain, I attempt in that column to sort out whether the COVID-19 crisis should change the way we think about the two biggest pre-existing threats to future generations: environmental catastrophe and the death of constitutional democracy.  Short answer: No, it does not. Why think about any of this?  After all, it is now completely clear that our environmental and constitutional

How Sincere are Religious Objections to COVID-19 Vaccination?

  by Michael C. Dorf Under federal and state constitutional and other law, when a person claims some entitlement in virtue of a religious belief, neither courts nor other governmental actors challenge the truth  of the belief, but in principle, they may question the  sincerity of those beliefs. I say "in principle" because recent cases involving claimed religious objections to public health and other measures appear to take such objections at face value without properly scrutinizing them for sincerity. Here I'll focus on Tuesday's opinion by Federal District Judge David Hurd in Dr. A v. Hochul , granting the plaintiffs' motion for a preliminary injunction against New York's application of its COVID-19 vaccination mandate for health care workers to ostensibly religiously scrupled plaintiffs. In the course of the ensuing discussion, I'll have occasion to observe that the truth and sincerity inquiries may not be entirely possible to disentangle.

Minimum Wages, Academic Fads, and the Faux Nobel

by Neil H. Buchanan The time has come once again to talk about the non-Nobel Prize in Economics.  There are many years in which I choose not to take public notice of the announcement of that prize, either because I have no opinion about the recipients' work or, more likely, because there are too many other things going on in the world to devote one of my columns to discussing what is in the end an obscure academic award.   Obscure?  Nobel?  One of the late night shows recently asked passersby in Los Angeles to name even one Nobel winner of any kind, including the Peace Prize.  It was embarrassing to watch those poor people struggle.  How would they have done if asked to name any of the economists? This year, however, there actually is something both interesting and heartening about the economics award.  Sometimes, economists' work is important enough to be transformative and to deserve recognition, even in a field as encrusted and often retrograde as academic economics generall

Incompatible Commands in Law and in Everyday Life

  by Michael C. Dorf A recent NY Times column by Peter Coy  quotes Professor Buchanan and me in a dispute over the nature of money with Professor Rohan Grey (subsequently joined by Paul Krugman ). Buchanan and I worry that if the government were to mint trillion-dollar platinum coins as a gimmick to circumvent the debt ceiling, that could undermine popular faith in money, which depends for its value on social acceptance. Grey and Krugman respond that money has value because the government requires the payment of taxes and accepts money, specifically dollars, as payment. Buchanan and I in turn respond that this fact does not suffice to make money perform its function in private transactions, as evidence from countries experiencing high inflation shows. Moreover, we have pointed out in numerous fora, minting trillion-dollar platinum coins should be at best a last resort, given that there are better ways for the President to handle a debt-ceiling crisis. My Verdict  column tomorrow will a

Social Media Regulation, The Limits of Originalism, and the Supreme Court's Obsession with Free Speech

 By Eric Segall Last Friday I participated in a virtual symposium at Mercer Law School on "Social Media Platforms and Free Expression." The issues raised by government regulation of the internet are complex, and of course no one can do justice to them in a lengthy law review article, much less a blog post. But there are two points I want to highlight about this issue that came through clearly during the symposium: 1) originalism is completely unhelpful as a theory of interpretation/construction when it comes to judicial evaluation of regulatory limits on social media companies; and 2) the United States Supreme Court has an obsession with free speech values (at the expense of other important concerns) not shared by most other free countries.

The S.B. 8 Injunction and the Questionable Principle that Equity Acts Only When there is no Adequate Remedy at Law

  by Michael C. Dorf I spent an hour yesterday on the phone with a very smart but very perplexed reporter trying to understand the various nuances of the many issues addressed by Judge Pitman in his opinion granting a preliminary injunction against Texas SB 8 in the case brought by the Department of Justice. That's completely forgivable. These issues are hard enough to explain over the course of a semester in my Federal Courts class. And at least some aspects of the SB 8 litigation involve novel applications of complex doctrines. Here I want to focus on a fairly basic idea that permeates Judge Pitman's analysis. He repeatedly states that private litigation is inadequate to vindicate the constitutional right to abortion in Texas, given the procedural trapdoors in SB 8. Why does he keep coming back to that point? I think there are at least two reasons. First, Judge Pitman wants to ward off a criticism--offered anticipatorily by Texas in its submissions--that his ruling licenses

The Platinum Coin Spit-Take and Other Debt Ceiling Lunacy

by Neil H. Buchanan The latest reporting from the U.S. indicates that Republicans have offered to pause their debt ceiling obstructionism, which had threatened to create economic and constitutional crises on October 18, until sometime in December.  Among other things, this means that my phone might stop ringing for the next two months.  Woo hoo!   What is left to say?  Plenty.  Here, I want to discuss a few of the truly silliest arguments that have arisen in this latest go-round on the debt ceiling.  As the headline to this column suggests, there was one moment in particular when I actually did a spit-take, and there were certainly others that qualified as utterly puzzling if not downright goofy.  Who said legal analysis is never fun?

We (Buchanan and Dorf) Aren't the Ones Saying the President Should "Invoke" the Fourteenth Amendment

  by Michael C. Dorf A recent Washington Post article explains that the Biden administration is quietly trying to figure out what to do in the event that Republicans don't end their filibuster and Democrats don't manage to increase, suspend, or repeal the debt ceiling through reconciliation before the government is unable to meet all of its legal commitments without exceeding its borrowing authority. With less than two weeks remaining until that doomsday deadline, the scenario planning is sensible, much in the way that it's sensible to have some sort of evacuation plan in the event of a nuclear war. Of course the evacuation plan will not avert the catastrophe but can only somewhat mitigate it. And of course the top (and second, third, and fourth through fiftieth) priority should be averting the catastrophe. Still, it would be imprudent not to prepare for the worst in case it occurs. At the same time, as Prof Buchanan acknowledges in his latest Verdict column , the Biden ad

What If Pence Had Gone All In On the Coup?

by Neil H. Buchanan   People are still grappling with the Woodward/Costa revelations regarding former Vice President Mike Pence's possible flirtation with the completely nutty constitutional argument from Trump lawyer (and disgraced former law professor and dean) John Eastman.  Eastman, readers will recall, claimed that Pence could simply take control of the January 6 joint session of Congress and prevent Joe Biden's victory from being formalized.  Pence said no, but how close did he come to saying yes?   I am surprised to find myself saying that there is more to this story, but here we are.  Pence's actions are in some sense truly bizarre, and not merely because he ultimately found his moral bearings by talking with Dan Quayle.  In a lawless administration that had by that point reached its most extreme stage of degradation, why did Pence not simply do what Trump wanted and then dare the world to try to stop him?  

The Misused Concept of "Discrimination" and why SCOTUS Should not Hear the Harvard Affirmative Action Case

 By Eric Segall The Supreme Court term starts today and, as the whole legal world knows, the Court has already agreed to decide important abortion and gun cases. There is another dispute the Justices might hear that could have enormous consequences for private and public higher education in this country. The right-wing public interest group Students for Fair Admissions (SFFA), which has brought numerus cases challenging racial preferences in colleges and universities, has sued Harvard claiming the university discriminates on the basis of race against Asians. Two lower courts have issued hundred of pages of opinions rejecting these claims, and now SFFA is seeking Supreme Court review. The Court should deny certiorari for a number of reasons but mostly because Harvard is not engaging in "discrimination" under any meaningful sense of that term. Harvard is a private university and thus not bound by constitutional requirements. However, a federal statute, Title VI of the Civil R

Maybe the Vice President Decides the Presidential Election After All?

  by Michael C. Dorf In our response to the appalling memo by John Eastman, Professor Buchanan, Professor Tribe, and I cheekily noted the temptation to run with Eastman's analysis in the next election, because doing so would license Vice President Harris to ensure a Democratic victory in the event that a Republican wins the 2024 Presidential election. Nonetheless, we explained that this conclusion is hardly the best reading of the Constitution's text and would run counter to the basic principle that no one should be a judge in their own cause: because the sitting Vice President is usually a candidate either for re-election or for the Presidency, it makes little sense to assign to the VP the unilateral power to rule on anything of great importance regarding the outcome of a Presidential election. With a caveat I'll add at the very end of today's essay, I (speaking for myself without having consulted Professor Tribe or Professor Buchanan) will stick with that conclusion