Showing posts from January, 2022

Balancing and Deference: A Reflection on Justice Breyer

  by Michael C. Dorf In my Verdict column last week , I characterized Justice Breyer as: (1) a fox--who cared about and was interested in a great many things--rather than a hedgehog--who knows one big thing; (2) a compromiser; and (3) a balancer, who, other things being equal, saw the virtue of flexible multi-factor standards as superior to fixed rules. Contrasting Breyer with the late Justice Scalia, with whom he often sparred during their long overlap on the Court, I expressed a preference, all things considered, for Breyer's standards and balancing over Scalia's rules and commitment to constraining judicial discretion. That said, I freely acknowledge that going all in on standards has the downside that proponents of rules frequently discuss. Other things being equal, standards are less determinate than rules, so rules have the virtue of predictability--valuable for those who must conform their conduct to rules as well as to a society worried about vesting too much discretion

The Central Importance of Judicial Independence for Preserving Academic Freedom

by Neil H. Buchanan There is a growing likelihood that Republicans will force universities to toe their party line.  Having long convinced themselves that higher education (and, more recently, even K-12 education) is a hotbed of leftist indoctrination, they will surely enforce their orthodoxy without compunction.  Rush Limbaugh spent years telling them that academia is one of the "four corners of deceit" (the others being government, media, and science, the latter of which is in large part carried out in universities), and now they are ready to act.   The irony is that Republicans view the statistics showing that most professors are registered Democrats as proof of political bias, but even scholars in the pure sciences are understandably aligning with Democrats in the face of Republicans' anti-knowledge hysteria (which has intensified in the last two years but has been brewing on the right for generations).  So Republicans' attacks on universities as being partisan

How Long Will the Recent Victory for Free Speech at the University of Florida Last?

by Neil H. Buchanan   In what can only be described as a scorching ruling, a judge in the U.S. District Court for the Northern District of Florida ruled last week that the University of Florida (UF) continues to be in violation of the First Amendment.  Formally, because Chief Judge Mark E. Walker's 74-page ruling granted a preliminary injunction, the judge did not rule on the ultimate question.  Even so, only the most obtuse reading of his scathing analysis would leave any doubt about where this case is going in his court. I add those words -- "in his court" -- because this is almost certainly going to end badly for the professor-plaintiffs.  Before explaining why, it is worth recalling what is at stake in this case, which generated very negative worldwide coverage for my university late last year.  As I explained in two columns in November 2021, UF's reputation has taken a major hit.  Last week's ruling makes it clear that the administration's effort to c

Libertarianism as Constitutional Interpretation

 By Eric Segall Last week on the Law & Liberty Blog, Professor John McGinnis, a self-identified textualist-originalist, wrote a love letter to the Supreme Court about its decision in NFIB v. OSHA , which invalidated OSHA's COVID vaccination rules and to one of the most important constitutional law cases in history Y oungstown Tube & Sheet Co., v. Sawyer . In that case, the Supreme Court held that President Harry Truman could not seize the steel mills during the Korean War when a nationwide strike closed down the steel industry. The OSHA case is an administrative law case, whereas Youngstown is   a constitutional one but the two decisions have one thing in common that McGinnis likes--courts striking down federal government actions during emergencies. The title of McGinnis's post was "Jabbing the Administrative State." He wrote that the OSHA case may be "critically important" to the future of administrative law: It potentially cabins the awesome autho

Affirmative Action Proponents Concerned About the Cert Grants in the Harvard & UNC Cases Should Not be Reassured by California's Experience

  by Michael C. Dorf Earlier today the Supreme Court granted review in two cases that pose the same question: "Should this Court overrule Grutter v. Bollinger , 539 U.S. 306 (2003), and hold that institutions of higher education cannot use race as a factor in admissions?" Recall that Grutter permitted the University of Michigan Law School to treat race as a "plus factor" in admissions, even as a companion case involving undergraduate admissions at Michigan rejected a fixed numerical score for minority applicants. Together, the cases converted what had been the de facto controlling view of Justice Lewis Powell in the 1978 Bakke case into the official doctrine. Cases since then have led to some sparring over the implications of the  Grutter decision, but prior to the Trump appointments, the Court had adhered to the framework Justice Powell established. But now potentially no more. To be sure, each of the two cases--one involving Harvard and the other involving the

Actual Malice on the Supreme Court

 by Sherry F. Colb In its review of certiorari petitions, at least one Justice called for a response to the petition in Coral Ridge Ministries Media, Inc.,d/b/a D. James Kennedy Ministries v. Southern Poverty Law Center . When the Justices are considering granting a petition, they always begin the process by calling for a response from the respondent. For this reason, if you are on the respondent's side of a case in which your opponent files a petition for certiorari, you can save your client some money and yourself some time by waiting for the Supreme Court's reaction to the petition. Based on past history, the Court will not simply grant a petition for certiorari without having read the opponent's response to the petition. What makes the call for a response (CFR) to the petition in Coral Ridge Ministries noteworthy is the fact that the petitioner is asking the Supreme Court to overturn a First Amendment free speech precedent that has been with us since 1964, when the Cou

The Sports Talk/Political Talk Convergence of Dangerous Group-Think

by Neil H. Buchanan   In the days leading up to the moment when Joe Manchin and Kyrsten Sinema revealed that they honestly and truly are willing to allow constitutional democracy to die, a minor story hit the wires about the University of Alabama's football coach, Nick Saban, who was reported to have urged his longtime almost-like-family friend Manchin to support voting rights legislation.  The New Republic 's daily newsletter mentioned the story, adding that this was a big deal because Saban's position probably would not go over well in beet-red Alabama. It turns out that there was much less to this story than met the eye.  The Business Insider article covering the news -- which did, via its headline and opening paragraphs, make it appear that this was big news and meant what it appeared to mean -- described Saban's having signed onto a letter of support for federal voting rights legislation.  I had no idea that Saban had grown up in W.Va., but if there was that con

Can We Predict What America's One-Party Autocrats Will Do?

by Neil H. Buchanan   I have no plans to move out of the United States, but I have been spending a fair bit of time lately writing about that topic.  And for obvious reasons.  Especially now that Senators Joe Manchin and Kyrsten Sinema have joined with every Senate Republican to end American democracy -- although Manchin somehow thinks that "the government" will protect voting rights, even without Congress requiring it -- pretty much nothing stands in the way of Republicans (mostly at the state level) now fully gutting voting rights, installing partisans in formerly nonpartisan counting-and-certification roles, and so on. No matter whether I personally pull the plug, there are very important questions about what will happen after elections no longer matter in this country.  In a Verdict column last week (" Where to Move? "), I explored the question of expatriation generally, along the way inquiring whether the UK is on the same path as the US (making it pointless

SCOTUS Was Right to Reject Trump's Effort to Block the January 6 Subpoena But Wrong to Call the Issues it Left Open "Unprecedented"

  by Michael C. Dorf In a brief order today , the Supreme Court rejected former President Trump's request for emergency relief that would block the release to the House Select Committee on January 6 of various presidential records on grounds that they are privileged, notwithstanding President Biden's determination not to invoke the privilege. Trump's request in principle raised an important question: how much weight should a former president's attempted invocation of executive privilege be given in the teeth of the incumbent's rejection of that invocation? However, as the Court also noted, the appeals court ruled that even giving Trump the same power to invoke executive privilege as an incumbent would enjoy, the House Select Committee subpoena prevails. After all, under United States v. Nixon , a president does not enjoy an absolute privilege; and per Trump v. Mazars , that's also true of a privilege asserted as against a congressional investigation. So Trump&#

The Winner of My Highly Unscientific Twitter Poll for Most Embarrassing Yale Law School Alum

  by Michael C. Dorf No, that was not one of those clickbait headlines that requires you to scroll and click through dozens of pages and see hundreds of ads before you learn the answer to the teaser question (e.g., "Can you guess which Hollywood stars used this mustard-seed paste instead of plastic surgery?"). The winner of my Twitter poll question --which asked readers to "Vote for the alum who most embarrasses Yale Law School"--is Harvard's Felix Frankfurter Professor of Law, Emeritus, Alan Dershowitz. Please join me in congratulating the eminent scholar/lawyer/author who famously kept his underwear on when receiving a massage at Jeffrey Epstein's residence. Perhaps with this prize in hand, Professor Dershowitz's erstwhile friends on Martha's Vineyard won't shun him  next summer. Now for a few quasi-serious reflections about my silly poll, which I kept open for three days last week and into the weekend. Here are the full final results: 

A New (Read Old) And Improved 14th Amendment? Reviewing Barnett and Bernick's "The Original Meaning of the 14th Amendment"

 By Eric Segall Imagine writing a 400+ page book titled "T he Original Meaning of the Fourteenth Amendment: Its Letter and Spirit ," but not discussing in any detail abortion, same-sex marriage, or affirmative action. Professors Randy Barnett and Evan Bernick (Barnett & Bernick) have written such a book, and while some have criticized it for leaving out perhaps the three most controversial public policy and legal disputes centered around the 14th Amendment, I praise the authors for their decision to leave those issues for another day. Given the primary goal of the book, to provide a scholarly account of the 14th Amendment's original meaning, and given their concession that courts today will need to construct doctrines that implement that meaning, which will be underdetermined in many (in my opinion most) cases, it was appropriate for the authors to duck those contentious questions. Accordingly, if you read this book, and you should, don't be disappointed that you

Pretext Explains (But Does Not Justify) the SCOTUS Invalidation of the OSHA Vaccine Rule

  by Michael C. Dorf Two days ago marked what would have been the 93rd birthday of the Rev. Dr. Martin Luther King, Jr. Today is the national holiday designated to commemorate his birth and honor his work. In past years, my co-bloggers and I have sometimes taken the occasion of MLK Day to reflect on racial justice (e.g., here ) or other, too-frequently overlooked, aspects of Dr. King's legacy, including his anti-war and anti-poverty activism. I strongly support  the call by members of the King family  and other civil rights leaders to use today's commemoration to demand voting rights legislation essential to protecting what remains of democracy in America. That said, although I discuss racial bias in policing below, today's essay is not principally about Dr. King's work. What is it about? I want to offer a hypothesis to explain the Supreme Court ruling on Thursday rejecting the OSHA rule requiring employers with 100 or more employees to require workers to be vaccinated

The Connection Between Indecency and Political Nihilism

by Neil H. Buchanan     Something very different has taken hold on the American right in recent years.  That change began to emerge long before Donald Trump's 2015 announcement of his presidential run, but it obviously intensified immediately thereafter and has only become worse nearly every day over the last six-plus years.  I have recently been describing that change as an outbreak of indecency , the borders of which are not bright lines but which is nonetheless much worse than garden-variety jerkishness (of which there is also no shortage these days). In a Dorf on Law column on Monday of this week, I took a run at describing what makes indecency a categorically different problem for the country.  I spent some time describing why some truly bad behavior -- the most prominent example of which is verbal abuse of restaurant servers and other retail workers -- does not (usually) cross over the line into being indecent. To this point, however, I had not invoked one of the most famou

The Pope and Pets

by Sherry F. Colb Last week, the Pope r eportedly told an audienc e that married couples that have pets instead of children are selfish . Before you could say  “He no play-a da game, he no make-a da rules” ( Earl Butz's reaction to an earlier Pope refusing to endorse contraception as a means of reducing world hunger), social media lit up with debates about whether the Pope did or did not "have a point." I will briefly touch on the substance of these debates and then turn to a somewhat different but related argument that I have heard more than once. Those attacking the Pope's words pointed out that (a) he does not have children, raising the question whether it is the absence of children or the presence of pets that triggers the charge of selfishness; (b) he lives in a palace surrounded by priceless art, suggesting that he also lives in a glass house; (c) our world is overpopulated, and the large number of children who then become grownups strains the carrying capacity

The Canadian Right: Adolescent Snark, Very Personal ad Hominems, and Laughable Bothsidesism

by Neil H. Buchanan   Should we all just move to Canada? Last week saw a significant worsening of the already dire political situation in the United States.  Although Republicans had spent the last year trying to block or hobble investigations into the terrorist attack on the Capitol last January, some Republican leaders have been surprisingly honest that they were doing so simply because they thought that an investigation would harm their party's chances in the 2022 midterms.  Political cynicism on an issue of such fundamental importance takes one's breath away, but at the same time, it somehow feels almost normal and not norm-shattering.  They will do anything to win elections.  Full stop. Now, however, it has become clear that there is something different going on.  It is not even worth going back over the much-discussed spectacle of Ted Cruz apologizing to the right-wing media empire for having correctly called the Capital attackers terrorists.  What is worse is that the n

SB8 and the Madisonian Compromise

  by Michael C. Dorf With first-semester constitutional law grading behind me, I recently turned my pedagogical energy towards revising my syllabus for the coming semester's instantiation of my federal courts course. Federal courts is an advanced course in procedural law, with a focus on the jurisdiction of the federal courts and the relation between federal courts, state courts, and administrative agencies. It was more or less invented as a subject in the 1950s, although the leading cases date back to the early Republic. The course material is conceptually difficult and deeply puzzling. I try to give my students a flavor of the complexity of the law in this area while also emphasizing that what sometimes seem like maddeningly technical questions camouflage important policy disputes. As with most law school courses, there is a canon of cases that doesn't change much from year to year, and then there are updates. For example, when I took the course (from the late great Dan Meltz

Has Everyone Lost Their Decency? And What Does that Even Mean?

by Neil H. Buchanan In a recent column , I used the word "indecency" to describe a comment from one of Dorf on Law 's most persistent trolls.  Specifically, the troll in question tried to bolster his argument against women's reproductive rights not by making anything resembling a reasoned argument but by resorting to ad hominem attacks.  That in itself is not indecent, but one of those ad hominem attacks mocked a law professor who had recently written a searing column in The New York Times under the headline: " I Was Raped by My Father. An Abortion Saved My Life ."   Even people who are eager to control women's bodies would, one think, at least acknowledge that some personal experiences are simply heart-breaking and deserve respect.  Not our troll, who decided that the better move was to sneer at the pain that the writer had bravely shared with readers of The Times.   That troll's mockery was one of the coincident events that led Professor Dorf to m

Three Rationales for Vaccine Mandates

by Michael C. Dorf Yesterday SCOTUS heard expedited challenges to the Biden administration's OSHA vaccine rules for workplaces ( transcript here ) and to healthcare worker vaccine rules for Medicaid/Medicare recipients ( transcript here) . I don't want to say there is nothing to the challengers' arguments. Surely they're right that it's a bit odd to use number of employees as a proxy for COVID spread risk. Hundreds of truckers each in their own long-haul cabs but working for the same company face substantially lower risk than 99 workers on a crowded factory floor; yet the OSHA emergency rule applies to the former but not the latter. Still, I don't think that the lack of precise tailoring renders the rule arbitrary and capricious, given the deference ordinarily accorded administrative agencies. Nor are the challengers' other arguments at all good. OSHA is empowered to protect workers' health (the word is right there in the name Occupational Safety and Hea

Today’s Column Delayed

  by Neil H. Buchanan Note to readers: I am “up” as today’s columnist, but I am still recovering from whatever it is that I described in my column earlier this week.  Rather than run a Classic column today, I’ve decided to let you all know that I’m planning to post a column later today or tomorrow, making it a weekend read rather than the standard schedule.  I hope that everyone is doing well.

Constitutional Law Exam 2021-- Featuring COVID, RLUIPA, Anti-Swiss Animus, and Executive Privilege

  by Michael C. Dorf Per my custom, I paste below the exam I administered to my constitutional law students last month. It's less humorous than some of my past exams, but I was pleased with it anyway. Question 1 was worth 40% and each of Questions 2 and 3 was worth 30%. Students had a 2500-word limit for this open-book take-home and eight hours to complete it. Interested readers can take less (or more!) time if they so choose.

Is America Over? The View From the North

 By Eric Segall As we approach the one-year anniversary of the right-wing, Trump-inspired (or led) attack on our nation's Capitol, both the traditional media and social media are full of worrisome predictions about the demise of democracy and representative government in America. As a glutton for punishment, I have been reading a bunch of these but the best I have seen is from Canadian scholar Thomas Homer-Dixon who, in his own words, studies " violent conflict. For more than 40 years, I’ve studied and published on the causes of war, social breakdown, revolution, ethnic violence and genocide, and for nearly two decades I led a centre on peace and conflict studies at the University of Toronto."  His most recent essay , " The American polity is cracked, and might collapse. Canada must prepare," is clear-eyed, focused, and brilliant. This blog post summarizes the highlights (or lowlights) of this piece and adds a few thoughts of my own. I skip over the end of the e

How "Mild COVID-19 Symptoms" Are Like Earthquakes and Unemployment

by Neil H. Buchanan I am now almost recovered from a case of COVID-19.  I think.  My uncertainty is actually two-fold.  First, I am not certain that I ever had Covid.  And second, I cannot be sure that it is really ending.  Even so, my recent experiences, I think, will help clarify some aspects of this pandemic that are not widely appreciated.  Even if one stops short of being on one's deathbed, this disease can be terrifying.

Why Free Exercise on Steroids Won't Benefit Progressive Religious People

by Sherry F. Colb As many people have noticed, the U.S. Supreme Court has been pumping up the Free Exercise Clause of the First Amendment over the last few years. In theory, Employment Division v. Smith , which demands only that government not discriminate against religious practice or religion, remains the law. In practice, however, the Court sees discrimination against religion everywhere--even when religion is simply not enjoying a special exemption from a generally applicable law--so the Smith  standard is effectively an illusion. And even when the Court is not expressly invoking religion, it is subtly relying on its members' religious beliefs. The oral argument in Dobbs v. Jackson Women's Health Organization , an abortion case, is an example: the attorney pressing the Court to overrule Roe v. Wade relied very much on the belief that the raw materials with which women make babies inside their bodies, including zygotes and embryos, are already babies.  Justice Sotomayor cal