3 Unrelated Things: Sherry Colb Symposium Recording; House Speaker Qualifications; SCOTUS Term Preview today at 2 PM ET
As the title of today's essay indicates, I have some announcements, into which I'll intersperse some observations.
(1) You can now watch recordings of the Symposium in Honor of Sherry Colb that was held on September 29 at Rutgers Law School, which co-sponsored the event with the Cornell Law Review. With the exception of a lunchtime session of personal remembrances, the above link to the recording includes all of the day's panels. (If you want to jump directly to individual panels, panel 1 includes the Rutgers Dean's welcome and the papers on cross-cutting themes; panel 2 is on animal rights; panel 3 focuses on criminal procedure; panel 4 is on feminist jurisprudence; and the final recording is the Cornell Dean's concluding remarks.)
Despite the fact that the New York City metro area experienced very heavy rainfall that affected some local travel on the day of the symposium, it was very well attended and seemed to be very well received. Because written papers are in various states of completion, they are not currently available as a set, although individual authors may make pre-publication drafts available (as I have done with mine here) before the ultimate versions appear in the Cornell Law Review.
(2) My most recent Verdict column went up on Monday. It challenges what has now become the conventional wisdom that the House of Representatives may choose a non-member as its Speaker, using as a point of departure a tongue-in-cheek Washington Post article (in which I'm quoted) that asks whether the House could make ChatGPT its Speaker. As I explain in the column, the basis for the conventional wisdom is remarkably thin, ultimately resting on an interpretive fallacy about which Professor Buchanan also wrote with respect to the pardon power (e.g., here, here, and here). The fallacy is that if a constitutional provision (or any enacted text) does not expressly rule out some set of possibilities, it necessarily allows those possibilities.
The writer of the WaPo article, Philip Bump, jokingly invokes the movie Air Bud, in which a dog is allowed to play in an interscholastic basketball game because the referees can't find a rule specifically forbidding dogs to play. As Bump knows and intends, that's absurd, whether we're talking about the rules of a game or the law. No matter how hard one tries, it is essentially impossible to specify in advance all of the rules and sub-rules governing any reasonably complex activity. The best one can typically do is to supplement rules covering everything you can anticipate with a catchall standard that then leaves the ultimate determination in the hands of the final decision maker.
Consider the incredibly detailed rules of competitive chess, which cover such matters as what happens when a player's elbow inadvertently brushes up against their queen as they go to move a pawn. Even so, the rules don't expressly cover everything. For example, according to Rule 20G, it "is forbidden to distract or annoy the opponent in any manner," but the Rules do not expressly forbid murdering the opponent. We could say that murder is both distracting and annoying but, depending on how it's accomplished, it might be neither. And in any event, our attempt to fit murder into one rule or another would be less about the literal meaning of the rules than a reflection of the fact that a murder prohibition is taken for granted--implicit.
I won't belabor that point further here, except to note that there really aren't any other grounds for thinking that a non-member of the House can be Speaker. The original understanding is at best unclear and the weight of historical practice as well as functional considerations point strongly against a non-member. Really the only thing going for the conventional wisdom is the Air Bud argument, which should be very weak but appeals to the same sort of naive formalism that one sees whenever a nominee to the Supreme Court tells the Senate that the job of a judge or Justice is to "apply the law, not to make it."
(3) Later today (2 PM ET), Professor Vikram Amar and I will preview the current SCOTUS Term for a Justia Webinar. It's available for free to Justia members; attorneys (but alas, not the general non-lawyer public) can become members for free. I know it's a bit odd to preview a Term that began last week, but most of the most significant cases have not been argued yet, and of course nothing has yet been decided.
Time permitting, Prof Amar and I will discuss about half a dozen of the most important cases and issues on the docket. Even so, the current Term's major cases are not likely to be the sorts of blockbusters we've seen from the SCOTUS conservative super-majority in the last couple of years, with one possible exception: if the Court in the Rahimi case actually invalidates 18 U.S.C. § 922(g)(8) -- which forbids firearms possession by persons subject to domestic-violence protective orders -- that will signal that the Justices have lost their collective minds and truly intend to use the Second Amendment to turn the country into a free-fire zone. Although the Fifth Circuit opinion under review is correct that domestic-violence protective orders have no precise analogue in Founding-era firearms restrictions, the government's brief provides numerous examples of laws before, at, and after the Founding disarming persons who are not law-abiding and thus pose a danger if armed.
Are such precedents close enough to § 922(g)(8) to "count" for Second Amendment purposes? In numerous contexts, the courts must decide just how closely analogous some precedent must be to cover some new case, so the question posed in Rahimi is in that sense quite familiar. However, the overriding consideration here should be common sense. Whatever the Court said about the need for a Founding-Era analogue in 2022 in NYS Rifle & Pistol v. Bruen, it would be nuts to say that Rahimi (who has an extensive record of firearms-related bad behavior) has a Second Amendment right to possess a gun. I don't think there are five votes on even this iteration of the Supreme Court for that result, but then I wouldn't have thought there would be the votes for this result even in the Fifth Circuit either.
What about the other major cases on the SCOTUS docket? The cases involving state regulation of social media are important but unlikely to be blockbusters. And one case that might be thought to be a potential blockbuster in my view won't be--regardless of the outcome. That's Loper Bright Enterprises v. Raimondo, which asks the Court to eliminate Chevron deference to administrative agencies. I disagree with the suggestion that the Court should overrule Chevron, which could provide for an interesting contrast with Prof Amar, who thinks Chevron is not just wrong but unconstitutional (at least as a wholesale doctrine). But I don't think it matters much whether the Court retains or overrules Chevron. Even if the Justices retain it officially, they have made clear that via the major questions doctrine and other avenues, they're intent on stifling administrative action (at least when there's a Democratic President).
Anyway, that's the preview of my preview.