Showing posts from 2023

Of College Football, Legal Realism, and Constitutional Litigation

If you are even a casual college football fan, you are likely aware of the great controversy surrounding the selection of the four teams to make the end-of-the-year playoffs. The committee assigned the unenviable task of making that decision set the sports world on fire when it choose as the fourth and final team a one-loss Alabama team over an undefeated Florida State team (albeit with its first-string quarterback out for the season). Of the other three teams, Washington and Michigan were undefeated while Texas lost once to Oklahoma. There are thirteen members who serve on the committee to decide what four teams make the end-of-the year playoffs based on the following criteria :  conference championships; strength of schedule; head-to-head results against common opponents; head-to-head matchups if they happened; and a catchall of "[o]ther relevant factors such as unavailability of key players and coaches that may have affected a team’s performance during the season or likely will

The Major Questions Doctrine on Opioids

Much of yesterday's oral argument in the Purdue Pharma   case focused on a predictive question. Numerous potential plaintiffs who suffered as a result of opioid addiction supported an arrangement under which Purdue filed for bankruptcy, the Sackler family contributed billions of dollars to the bankrupt entity to pay claims, and the Sacklers--who also retained billions of dollars in personal assets--were released from any individual liability. The district court invalidated the settlement but the US Court of Appeals for the Second Circuit reinstated it . Nearly all of the interested parties support keeping the settlement in place but the United States government--in its capacity as what Deputy SG Curtis Gannon called its "watchdog" role--objected that the bankruptcy court lacks authority to release third parties like the Sacklers (who did not file for personal bankruptcy) from liability. But the other lawyers vigorously argued that the Court should not invalidate the deal

The NBA In-Season Tournament, Platonic Golf, and the Constitutional Right to Same-Sex Marriage

[NB: Today's essay talks about basketball. If you're not interested in basketball, either don't read on or jump down to the tenth paragraph.] The quarterfinal round of the first-ever in-season tournament for the blandly named NBA Cup begins tonight when the Sacramento Kings play the New Orleans Pelicans in the west and the Indiana Pacers host the Boston Celtics in the east. Tomorrow's quarterfinal games feature the Phoenix Suns and Los Angeles Lakers (KD versus Lebron!) and my beloved New York Knicks facing the 2021 NBA champion Milwaukee Bucks. Like many longtime basketball fans, I'm not quite sure what to make of this event that NBA Commissioner Adam Silver modeled on the in-season tournaments that European soccer clubs play. I share the widespread disdain for the eye-assaulting special floors that were used in the group play games. And I'm a bit annoyed that as their reward for making the knockout round, the Knicks have to play an extra game in Milwaukee aga

The Justice of Compromise: RIP Sandra Day O'Connor

Sandra Day O'Connor passed away on Friday. The first female Supreme Court Justice was an inspiration to millions of American women and girls. She was a life-long Republican who rose through the ranks of Arizona politics at a time when few women were allowed to engage directly in high-level government service. Ronald Reagan nominated her to be a Justice in 1981, and twenty years later Jeffrey Rosen, the head of the National Constitution Center, famously remarked that "we are all living in Justice O'Connor's America." She was at one time the most important judge in the United States. Despite a long career centered around the GOP, Justice O'Connor departed from the party line throughout her tenure on the Court. She preserved a woman's right to abortion, upheld (with substantial limitations) affirmative action, actually enforced the establishment clause, unlike all six conservative justices sitting today, and tried to broker compromise on many difficult is

'Filtered Sociopaths' and the Misuse of Religion in Politics

Earlier this week, I wrote here about a prominent Christian policy analyst's critique of Donald Trump .   In an excellent column for The Atlantic , and then in a TV interview , former George W. Bush speechwriter Peter Wehner called out his fellow believers for throwing away all of their supposed principles as they continue to fervently support the morally depraved former president -- fervor being the coin of their peculiar realm. I had already planned to write a followup to that column today when two bits of low-hanging fruit presented themselves.  A Republican House member was quoted describing Trump as "the Orange Jesus," while a text written by one of his colleagues on December 30, 2020, made the news with this description of now-indicted Trump coup plotter Jeffrey Clark: "You are the man. I have confirmed it.  God does what he does for a reason." Normally, there would be a good argument to skip over these examples of the heretical, profane, blasphemous r

The Persistence of Public Rights Doctrine (Jarkesy Oral Argument Edition)

The good news coming out of yesterday's oral argument in SEC v. Jarkesy is that the Justices and advocates spent almost no time discussing two of the Fifth Circuit's preposterous reasons for finding that SEC enforcement actions are unconstitutional. (1) The Fifth Circuit had said that Congress, in leaving to the agency the decision whether to bring an enforcement action in the agency or in federal court, violated the nondelegation doctrine by failing to provide an intelligible principle. That's absurd because federal enforcement agencies routinely exercise enforcement discretion--for example about whether to bring a prosecution at all --that is equally unguided by legislation and that has higher stakes. If this is a violation of the nondelegation doctrine, everything is. (2) As an alternative ground for its holding, the Fifth Circuit invoked the SCOTUS decision in  Free Enterprise Fund v. Public Co. Accounting Oversight Bd. to hold that the two layers of for-cause protec

Anti-Trump Christians' Criticisms of Pro-Trump Christians are Important but Self-Absolving

Donald Trump's recent efforts to extinguish all remaining doubt about whether he is a fascist have, of course, led to an outpouring of criticism and alarm. The Atlantic published one high-profile critique last week: "Have You Listened Lately to What Trump Is Saying?"  That piece, by Peter Wehner, carries the sub-headline: "He is becoming frighteningly clear about what he wants." Wehner is a former George W. Bush speechwriter and a fellow at a right-wing political shop run by writers who link their policy views to their Christian beliefs.  He emerged in 2016 as a forceful voice against Trump (for example, here ), decrying the embrace by Wehner's fellow religious conservatives of that most ungodly of politicians. I will return to Wehner's Atlantic piece in a moment, but I first want to focus on a comment that he made during an interview on Monday on MSNBC's "Morning Joe."  The segment , titled "Some Christians are enthusiastically

Of Separation of Powers, the SEC, and the Limits of Originalism

Tomorrow the Supreme Court will hear oral argument in a complicated case involving the constitutionality of the Securities and Exchange Commission ("SEC"). The SEC employed its in-house enforcement proceedings to fine the plaintiff's firm $300,000 for securities fraud and ordered it to repay nearly $700,000. The plaintiff brought three challenges to the fines, and he prevailed in the lower court.  First, he argued that he was entitled to a jury trial under the Seventh Amendment, which provides that in " suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved...." The Court has long held that this right to a jury trial does not apply to so-called public rights which were not in existence in 1791, such as those created by the securities laws. The plaintiff wants the Court to overturn or greatly limit that doctrine. The plaintiff's second argument is that  Congress is not allowed to delega