The Cubs and the Supreme Court

Rick Pildes

For those who think my blog posting about the Cubs has nothing to do with the Supreme Court issues frequently discussed here, see today's Scotus Blog post, at this link.
Posted 5:16 PM by Rick Pildes [link] (2) comments

No, Justice Kagan did not violate a statutory recusal requirement [UPDATED with reply]

Marty Lederman

Section 455(b)(3) provides that "[a]ny justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding . . . [w]here he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy."  Section 455(d)(1), in turn, provides that for purposes of section 455, the "meaning" of "proceeding" includes "pretrial, trial, appellate review, or other stages of litigation."

Justice Kagan obviously has not participated as a counsel or a material witness in any ACA litigation, nor does Ed suggest that she ever, in her capacity as SG, "expressed an opinion concerning the merits of [a] particular case in controversy."  So the only remaining question is whether Kagan, as SG, participated as an "adviser . . . concerning any ACA proceeding" that later came before the Court.

Ed writes that "[i]n her capacity as solicitor general, Elena Kagan was personally involved, even if only to a limited degree, in advising how to defend against challenges to Obamacare"; and in support of this claim, Ed links to a series of emails that have been released.  But nothing in those emails offers any evidence to support the notion that SG Kagan participated as an adviser in any ACA litigation.

First, in January 2010, two and a half months before Congress even enacted the ACA, Deputy SG Neal Katyal e-mailed Kagan to ask her which Deputy SG should be involved in any future discussions within the government about possible litigation involving the health care law--himself, or Ed Kneedler, or both.  Kagan responded that Katyal "should do it."  This delegation of responsibility to one of her Deputies for purposes of possible future litigation obviously was not the provision of legal advice on any proceeding that was later before the Court--indeed, no such proceedings existed, because ACA lawsuits had not yet been filed against then-non-enacted legislation.  

Also in January, Katyal wrote to a lawyer in the Associate Attorney General’s office that “we will bring Elena in as needed.”  But the emails do not offer any evidence that Kagan was ever "brought in," let alone that she provided any advice when proceedings challenging the ACA were eventually initiated in late March.  

Ed Whelan also cites another email of Neal Katyal's, on March 21, 2010, in which Katyal suggested that Kagan attend an interagency meeting the next day (March 22) to discuss the prospects of litigation.  That meeting, too, was convened before the law was enacted and before constitutional challenges ("proceedings") commenced--both of which happened on the 23d.  There's no evidence that Kagan attended the March 22 meeting, let alone that she offered any advice on the litigation once it was initiated.  

To the contrary, in another internal DOJ email written on May 17, one week after Kagan had been nominated to the Court, Katyal wrote that Kagan “has never been involved in any of [the ACA litigation].  I’ve run it for the Office, and have never discussed the issues with her one bit."  This is hardly surprising, because Kagan had already been informed by White House Counsel that the President was considering her for appointment to the Court (see page 199), and she evidently had decided that she would recuse from the litigation challenging the ACA so that the Court would have a full complement of Justices to review any such case in the event she were nominated and confirmed.  In those circumstances, it would have made no sense for her to advise on any ACA litigation in her capacity as SG.

And that's it.  Ed Whelan doesn't offer any other evidence, and thus he provides no basis for concluding that SG Kagan ever participated as an adviser concerning any proceeding that later came before the Court when she was a Justice.  Justice Kagan told the Senate (see page 68) that she would consult and abide by the prescriptions of section 455, among other "relevant prescriptions" for recusal.  There's no reason to think she violated section 455(b)(3) when she sat on NFIB v. Sebelius and other cases challenging the ACA. 

UPDATE:  Ed Whelan has replied here.  He assumes that my argument depends upon the notion that section 455(b)(3) cannot be triggered by actions of a government lawyer undertaken before litigation is filed:  What if Elena Kagan had, he surmises, "drafted a template summary-judgment motion to be used in all the Obamacare cases," but had done so only before any such cases were actually filed?  

I honestly don't know enough about section 455 to say for sure whether such pre-litigation drafting would constitute acting as an "adviser" on proceedings that did not exist at the time, or whether the statute only applies to advice on existing litigation.  I am fairly confident, however, that Justice Kagan would have recused from NFIB v. Sebelius if she had done any such thing as SG, regardless of whether section 455 required it.  The principal point of my post is that Ed points to no evidence that Kagan did any such thing--that she provided any advice at all on existing or foreseeable litigation--while she was SG.

To this, Ed's response seems to be that Kagan should have advised on the litigation as SG, even if she did not do so:  "Kagan’s role as SG was to do her job, not to act to ensure that [in my words] 'the Court would have a full complement of Justices.'”

I don't think it was at all improper for Kagan not to work on the ACA litigation at DOJ once she knew there was a serious possibility she'd be the ninth Justice--particularly if she concluded that her vote would only make a difference if the Court were otherwise split 4-4, and that there was every reason in the world for the Court to avoid such a 4-4 split on a momentous issue of great public importance and a major, complex piece of federal legislation, especially where there might be a circuit split (which was in fact what happened).  (My recollection from her testimony is that, contrary to Ed's suggestion, this was not the only matter within DOJ that she stopped working on at the time--but it certainly was one as to which the prospect of a huge, long-term mess of uncertainty in the event of a 4-4 split was easily foreseeable.)

But that's not the real point:  Even if Ed thinks Justice Kagan ought to have offered legal advice on the cases as SG, in fact she did not do so.  Therefore she did not violate section 455 by participating in the NFIB case as a Justice.
Posted 9:57 AM by Marty Lederman [link]

Justice Thomas' 25 Years on the Supreme Court

Rick Pildes

This month marks the 25th year that Justice Clarence Thomas has been on the Supreme Court, which means he has now served one year longer than the man he replaced, Justice Thurgood Marshall (for whom I had the honor of clerking).  The major media are beginning to recognize this milestone, as in the stories here, here, and here. 

Very few academic symposia exist thus far that are devoted to assessing the body of work Justice Thomas has produced in that quarter century.  Among the most prominent law schools, the only such symposium of which I am aware is one produced nine years ago by the NYU Journal of Law and Liberty, entitled The Unknown Justice.  Contributors included federal and state judges, such as David Sentelle of the D.C. Circuit and Robert S. Smith of the NY Court of Appeals; academics, such as Professors Nicole Garnett, Greg Maggs, Sam Issacharoff, Stephen Smith; and others.  For that collection of articles, see Vol. 4, No. 3, at this link. For journalists looking for academic assessments of Justice Thomas' work on the Court, this symposium offers a rich set of perspectives.

I wrote the brief introduction to that Symposium, in which I described my personal experiences with Justice Thomas, which stem from a scholarship program he's been involved with at NYU for nearly two decades and conferences we have jointly hosted.  That introduction is here.    
Posted 4:00 PM by Rick Pildes [link] (11) comments

The Distinctive Role of Justice Alito: From a Politics of Restoration to a Politics of Dissent

Neil Siegel

The editors of the Yale Law Journal asked me to contribute to a series reflecting on Justice Alito's first ten years on the Court. In lieu of praising or criticizing the Justice, I elected to ask into what distinguishes him from his colleagues.

I have concluded that, especially in light of Justice Scalia's passing, Justice Alito has become the primary judicial voice of the many millions of Americans who appear to be losing the culture wars, including in conflicts over gay rights, women's access to reproductive healthcare, religious exemptions, and affirmative action. As evidenced, for example, by his opinions in Hobby Lobby and Obergefell, Justice Alito empathizes with the plight of traditionalist conservatives as the world changes profoundly around them, and he seeks to preserve their ability to refuse to accept the new normal.

Given the "hinge" point in American constitutional history that appears to be fast arriving, I also predict that Justice Alito's dissents on behalf of traditionalist dissenters will become more frequent and more strident in the years ahead.

Part of my argument differs in a subtle but important way from Mark Tushnet's recent declarations that the ideological left has already won the culture wars. In my view, a series of recent developments now renders it possible to imagine that the left will win the culture wars. Actually winning, however, will require more than a new Democratic president and a relatively liberal Court for the time being. Actually winning will also require continued changes in popular understandings of the moral and constitutional status of groups who traditionally did not count--or count for much--in constituting the People in whose name the Constitution purports to govern.
Posted 4:38 PM by Neil Siegel [link]

A "Government of National Unity"?

Mark Tushnet

Posted 12:21 AM by Mark Tushnet [link]

Cheer Up

Gerard N. Magliocca

With respect, all of the gloom and doom surrounding the campaign is starting to sound like the melodrama that you hear on "The Real Housewives of [Wherever]."  I would therefore like to make some contrarian positive (or contextual) observations.

First, in a post months ago I said that I was confident that there was not a national majority in favor of Donald Trump. In three weeks, that prediction will be borne out by the largest presidential landslide for a Democrat since 1964.

Second, the notion that past presidential elections were always conducted under "Gentlemen's Rules" where the loser graciously conceded is a fantasy. John Adams refused to attend Thomas Jefferson's inauguration in 1801. Andrew Jackson attacked John Quincy's Adams' election in 1824 as the product of a "Corrupt Bargain" and spent the next four years doing his best to undercut the President. In 1828, Adams and Jackson waged what is often described as the nastiest presidential campaign ever, with Adams refusing to attend Jackson's Inaugural.  In 1860 an entire section of the country banned Lincoln from the ballot and refused to recognize his election.  And so on.

Third, there are other presidential elections where the candidate conceded graciously but many of his supporters felt cheated.  How about 2000?  How about 1960?  You get the idea.

Perhaps the best expression of my feelings comes from Franklin Roosevelt's Fourth Inaugural Address. This is not famous like his first ("We have nothing to fear but fear itself") or the second ("I see one-third of a nation ill-housed, ill-clad, ill-nourished")  But consider after you hear it how much greater the problems of 1945 were than our problems, and that the man giving the speech was dying.

Here is the link to an audio version.


Posted 9:54 PM by Gerard N. Magliocca [link] (16) comments

Will the United States Survive the 2016 Election (continued)

Sandy Levinson

More recent update (post-debate):  It is crystal clear that the major event of the "debate" (beyond Chris Wallace's resolute failure to ask a single question about climate change or global warming) was the refusal of the sociopath (who was clearly trying to adopt a more "serious" mien this evening save when he just couldn't contain himself) to agree to abide by the election results.  And the refusal is, in effect, twofold.  Not only is he continuing to raise completely unmerited doubt about the basic fairness of the vote, but he also continues to cast calumnies on Secretary Clinton and suggest that she is unfit to be President and would be a "disaster" as President (i.e., exactly the charges I am more than willing to make with regard to his own fitness to be President).  So I think that the possibility of a "good sport" concession is absolutely zero.  I suppose it would be marginally better for him simply to say on November 8 that "Crooked Hillary" prevailed in what was, after all, a fair election but that the country will deeply regret their mistaken choice than to say that the election itself was "rigged" and thus fundamentally illegitimate.  But surely nobody should feel more optimistic about our country's political stability after this evening than before.  He continues to be a menace in almost every conceivable way to our "Republican Form of Government."

Update:  I note for the record that Dana Milbank has a piece in the Washington Post with the temperate title "Trump supporters are talking about civil war.  Could a loss provide the spark?" The central theme is that their sociopathic champion has apparently persuaded them that the only explanation for his loss is a "rigged" election at the behest of "Dishonest Hillary."  Will the useful idiot Mike Pence continue to tolerate the fact that the leader of his ticket is engaged in de facto insurrectionism or will he actually feel compelled to say something truly strong and to the point, such as "my running mate is a clear and present danger to the stability of our country"?  I'm not holding my breath.


I take it that my earlier postings in this series may seem at least a bit less hysterical and over the top given whatever validation is provided by the fact that many media are now raising the possibility not only that the sociopath heading the Republican ticket may well not concede the election (whatever his ostensible running mate may say), but also, in some ways more importantly, supporters of the ticket may regard the outcome as illegitimate, should the sociopath not win, and resort to one or another method of violence.  See, for example, the lead in a NYTimes story that, ironically or not, indicates that the useful idiots within the Republican Party who are supporting (or at least not "non-endorsing" the sociopath), led by the vice-presidential candidate Mike Pence, are now sufficiently worried to be issuing statements about the election's legitimacy:  "Republican leaders and election officials from both parties on Sunday sought to combat claims by Donald J. Trump that the election is rigged against him, amid signs that Mr. Trump’s contention is eroding confidence in the vote and setting off talk of rebellion among his supporters."  What is touching, of course, is that they believe that those within the sociopath's "base" who are indeed "deplorable" will take the word of political elites (especially Democratic election officials) that the political system is not thoroughly rigged. 

Indeed, I confess that I have extremely mixed feelings about a Washington Post column by my friend Nate Persily and his associate Jon Cohen that emphasized that Americans are losing their faith in democracy and, importantly, "in each other."  It is not that I disagree with their data.  What I object to, though, is the unexamined premise that we in fact live in a genuine democracy and that it is, therefore, "losing faith in democracy" to raise serious questions about the nature of the American political system, including the various ways that it is indeed rigged (among other things, in favor of residents of small states (the Senate and, to some extent, the electoral college) and, of course, the monied).  For the first 75 years, after all, states with significant numbers of slaves got a distinct bonus in the House of Representatives and the electoral college, and the ability of the "reconstructed" but not really fundamentally changed states to deprive African-Americans of the right to vote meant that losing the war in fact got them enhanced power in the House (and electoral college) because 3/5 had changed to 1/1, but with too rare exceptions, especially after the turn of the 20th century, the actual electorate remained firmly white and racist.  Things did change, of course, with the Voting Rights Act of 1965, but the Republican Supreme Court seems determined to gut it.  If Antonin Scalia were alive, there can be little doubt that a number of states would be allowed to conduct their elections next month in a manner willfully designed to limit the African-American vote.  Moreover, and at least as much to the point, a primacy explanation for the grievous continuing racial inequalities in American life is the fact that African-Americans were systematically deprived of most of the benefits of the New Deal, and relatively few were able to take advantage of the most important affirmative action program in American history, the GI Bill of Rights following World War II that in many ways created the modern American middle class.  Anyone who has a scintilla of doubt on this score should read Ira Katznelson's magnificent book Fear Itself:  The New Deal and the Origins of our Time.  The awful fact is that Black lives did not matter to all too many New Dealers, including FDR himself, given the political realities that required accommodating racist supporters of the New Deal for whites.

I did, after all, write a book several years about about Our Undemocratic Constitution, and Michael Klarman is just publishing a book with the Oxford University Press on the Philadelphia Convention, which he describes as a "coup" by nationalists who were afraid of any strongly democratic impulse among the newly independent American people. (I believe that Klarman's book will be the subject of a forthcoming symposium on Balkinization.)

Still, the Persily-Cohen column is important and worth mulling over.  I often emphasize the degree to which very few people seem to believe that "We the People" are truly capable of the "reflection and choice" that Publius endorses in Federalist 1.  How can any "democracy" sustain itself without sufficient confidence in our fellow citizens to believe that the model of "reflection and choice" makes sense?  If we reject it--and I am tempted to say "simply" because one political party has nominated a uniquely unqualified sociopath--then, at the very least, American presidents and others should have the integrity to renounce the "democracy project" that has been a linchpin of American policy, sincerely or not, since at least the time of Woodrow Wilson and perhaps Abraham Lincoln, given the professed belief in government by the people and not only for the people, which might well be provided by a benevolent despot.  

This is and "existential" election, and not only because it is essential to reject the sociopath and hope that the Republican Party returns to a semblance of sanity.  Rather, what is equally being tested is whether "we" continue to believe in anything worthy of the term "democracy," or whether that is to be limited to a minimalist form of Schumpeterian "electionism" that should purportedly satisfy us so long as regular elections continue to be held, however the candidates are actually chosen.  

Finally, I cannot forbear from quoting from Charles Krauthammer's excellent column on October 13, in the Washington Post.  It is not only that he is yet another honorable Republican who has no use for the sociopath.  It is also highly relevant that Krauthammer was in fact trained as a psychiatrist, so perhaps that gives some special force to his words that mine do not (and perhaps ought not) have.  In any event, Krauthammer writes, "That Trump crashed because of a sex-talk tape is odd. It should have been a surprise to no one. His views on women have been on open display for years. And he’d offered a dazzling array of other reasons for disqualification: habitual mendacity, pathological narcissism, profound ignorance and an astonishing dearth of basic human empathy."  I take it that this "dazzling array," the subject of another Krauthammer column that you can link to, can be condensed, at least for laypeople, into the term "sociopath."  
Posted 6:03 PM by Sandy Levinson [link] (137) comments

On "Clamping Down on Religious Dissent"

Mark Tushnet

Posted 3:28 PM by Mark Tushnet [link] (64) comments

An Anti-Feminist Icon for Our Time

Joseph Fishkin

This week I was teaching sexual harassment law to my employment discrimination law class.  It’s a tricky topic today for law students in their 20s, because understanding the legal revolution of sexual harassment law requires understanding the world as it existed before it.  That world feels distant.  Most years when I teach this material I find Mad Men a useful touchstone.  The show gave a generation of students some general cultural knowledge about the sex hierarchies in a fancy white-collar New York workplace in the 1960s.  Having watched Mad Men, students find it less implausible, I think, to believe that judges—well into the 1970s—were telling women who complained of what we now call sexual harassment things like, well, you weren’t fired because you were a woman, but rather because you wouldn’t engage in sexual relations with your boss, so there was no sex discrimination.  Or, you went ahead and submitted to your boss’s sexual advances, and you kept your job, so no sex discrimination.  Mad Men is off the air now; I’ve been curious what would take its place.  Well… this year almost the very first point a student raised her hand to make brought up current events.

The kind of behavior Donald Trump boasted about on tape, and that various women are now coming forward to accuse him of, was not viewed by the law as discriminatory in an era that really wasn’t that long ago—it was an era that Americans of Donald Trump’s generation remember well.  For people a lot younger, accessing this world is tougher.  It is not easy to name exactly what it was that was overturned by the legal revolution that Catharine MacKinnon and others brought about in the late 1970s and early 1980s.  In the regime that was overturned, harassment was not sex discrimination, in part because judges and lawyers and lawmakers, almost all men, compartmentalized it, viewing it as taking place in a sphere of personal behavior, like dating, rather than in the sphere of work.  It took some brilliant and visionary work to convince both the legal system and the larger society that in fact, sexual harassment was part of a discriminatory system that enforced an overall sex role hierarchy, one ostensibly-private behavior at a time.

This work is a striking rebuke to those who insist that scholarship is irrelevant to law.  MacKinnon’s The Sexual Harassment of Working Women came out in 1979.  Within one year the EEOC had issued interim guidelines implementing this new idea that sexual harassment constituted discrimination “because of sex,” and by 1986 this theory had prevailed at the Supreme Court, in a Rehnquist opinion.  Nor does this story end with MacKinnon; later scholars also directly shaped both the law’s development and the trajectory of the concept of sexual harassment in our culture.  Vicki Schultz argued successfully that harassment wasn’t always about sexual advances—other forms of harassment and sabotage to keep women in their place had the same effect.  Those things now count as sexual harassment too, among judges and juries both.

Donald Trump is a singular, and increasingly isolated, figure in our politics.  He has various groups of strong supporters, from diehard anti-Washington-“establishment” types to highly partisan Republican voters who would support any nominee of their party.  At the same time, Trump has become a global beacon for a panoply of groups that share only one obvious thing: an attachment to some form of ethnic or ethno-religious nationalism.  Trump is the avatar of this nationalism and therefore an appealing figure in the minds of such disparate groups as Serbian nationalists, Hindu religious nationalists, Russian Putin-apologists and ultra-nationalists, and of course the all-American white supremacist “alt-right” of Trump’s campaign CEO and personal twitterverse.

But maybe these groups also share a less obvious thing.  Ethnic and ethno-religious nationalisms often tend to be bound up with traditional gender roles and opposition to feminism.  From their perspective, feminism seems cosmopolitan and transnational and therefore potentially threatening, like talk of “human rights.”  It is anti-traditional.  Members of all these movements are surely none too pleased with the idea of a female U.S. President who once declared, while breaking out of the traditional role of the First Lady, that “women’s rights are human rights.”  But that’s not the only reason they favor Trump.  They also see a lot to like in Trump himself, whose hypermasculine bluster strikes some of the rest of us as a kind of reductio ad absurdum of substance-free manly performance art.

Trump, in other words, is mining a deep and global vein of both ethno-religious nationalism and gender traditionalism; and these are linked.  It might seem absurd to talk about Trump in terms of gender traditionalism, since the man clearly sees himself as (and brags about being) a Hefneresque playboy—hardly a paragon of “traditional family values.”  But it’s not absurd at all.  In many ways, such as his attitude about his role in his own marriages, Trump is an arch-traditionalist.  Anyway this conflict has always had (at least) three corners: the traditional family, the sexual liberation of the Hefneresque playboy, and feminism.  In the 1960s and 70s, the traditional family values corner was dominant; it defined the main axis of public debate; and so feminism and Hefnerism had to (uneasily) share space on the other end of the axis, in opposition.  The question was: traditional family values—for or against?  In different ways, both were against.  Today, the question is: feminism—for or against?  And so, Hefnerism and traditional family values must begin to learn to (uneasily) share space on the other end of the axis, in opposition.

If this is right, then Donald Trump’s braggadocious embrace of what he might call womanizing (or what most of us would call sexual assault) is not actually a one-off.  It’s not a bizarre fluke that will end after Trump loses in November.  To be clear, no party will (hopefully) again nominate a potential Groper-in-Chief.  But an underlying triangular realignment will continue apace.  In the future, candidates who excuse some forms of sexual harassment, who view “boys will be boys” as a serious argument when discussing harassment, who in these ways embrace a certain degree of Hefnerism, will increasingly be found in (perhaps uneasy) political coalition with the advocates of “traditional family values.”  What they share is opposition to feminism.  Trump’s particular combination of views—objectification of women, Playboy lifestyle, veneration of traditional gender roles in marriage—are emblematic of a political alliance of the future.

The big question is what Trump’s failed candidacy, assuming he does fail, will do to all these cross currents.  In terms of ethnic nationalism, I fear that, even in defeat, Trump may have brought the fringe into the mainstream, radicalizing many Americans and building a far broader and more receptive audience for the “alt-right” and its racism.  Would it be too much to hope that, on the feminism axis, Trump might paradoxically have just the opposite effect—discrediting the set of views that treats as “normal” the kind of behavior with women that he has bragged about?  The fact that so many Republican politicians have denounced and distanced themselves awkwardly from this aspect of Trump, even as they embrace the rest and often continue to endorse him, might conceivably give reason for hope.  (Even if all the distancing is politically craven.)  In the end, if future Americans can agree on nothing about the 2016 campaign except this one point—that the behavior Trump bragged about is beyond the pale—perhaps that could turn out to be a small kind of progress, in a direction we have been moving, fitfully, since 1979.
Posted 12:30 AM by Joseph Fishkin [link]

Trump IS a Threat to the Rule of Law

Brian Tamanaha

My recent post suggested the New York Times was making too much of Trump's dumb "you'd be in jail" quip. I was wrong.
Posted 3:57 PM by Brian Tamanaha [link] (79) comments

Another law professor blathering on about Bob Dylan and the Nobel Prize

Mark Tushnet

Posted 1:09 PM by Mark Tushnet [link]

Will the United States Survive the 2016 election (continued, with special attention to Republican "leaders"taken issue

Sandy Levinson

It is clearer and clearer that the sociopath running for President on the Republican ticket is devoted not only to attacking the substantive legitimacy of Secretary Clinton (something I am obviously doing with regard to the sociopath), but also the legitimacy of any election that makes her President.  (I suppose I am doing the same thing insofar as the only conceivable way that the sociopath could be elected is because of the operation of the electoral college in a multi-candidate race).  I repeat what I said earlier:  No sane person beeves that the sociopath will get more than roughly 40-45% of the total vote, and some polls suggest significantly less than that.  The NYTimes is currently estimating the chances of a Clinton victory at 89%, so I think that a rational polity must be preparing for the high likelihood of a Clinton presidency.

This is where the sheer moral and political bankruptcy of purported Republican "leaders" is evident.  It seems incumbent on such "leaders," if they are anything more than the most snivelling political opportunists, to begin preparing their constituencies for the prospect of a Clinton victory by doing something other than simply saying it is important to elect Republicans to Congress in order to stop the dreaded Hillary from achieving any of her program.  That is "fair comment," whatever one might think of the prospects for continued gridlock if the Republicans do in fact maintain control of the House.  As I've written repeatedly, perhaps ad nauseum, my beef is with our defective Constitution that in effect encourage gridlock and the alienation that accompanies it rather than with Republican members of  Congress who oppose Democratic presidents.  Mitch McConnell behaved entirely rationally in refusing to treat Judge Garland's nomination seriously, even if one believes that was unfortunate for the republic more generally.

The far more serious issue is whether people like Ryan, McConnell, Thune and others who still play to vote for the sociopath--or, more accurately, tell the public that they will be doing so, leaving us to guess about the actual vote in the secrecy of the voting booth--will state now that however much they lament the possibility of her presidency, she is fact thoroughly competent and does not, as the fascist former mayor of New York seems to suggest, represent a threat to the republic.  If they are silent in the face of such incendiary comments by the sociopath and his enablers, then they are contributing directly to the view expressed by a woman in once of the Pence rallies a couple of days ago, i.e., she is ready for a "revolution" if Hillary wins.  All Pence could say is that the "revolution" will happen with a Trump victory on November 8.  Perhaps he believes that, but surely that view is not shared by most of the craven Republican "leaders" who are unwilling to say in public what they surely believe, that their candidate is indeed entirely unfit to hold any public office whatsoever, let alone the presidency.

Honorable Republicans like Jennifer Rubin, Michael Gerson, and Ross Douthat know that a political and moral accounting must take place in the Republican Party.  (Let me note for the record that I have come deeply to admire Rubin and Gerson because of their unrelenting willingness to go after those who support or enable the sociopath.)  This is also presumably true of honorable senators like Lindsay Graham, Ben Sasse, and Susan Collins (who did not need to hear "the tape" in order to know that her candidate was beneath contempt and did not deserve her support).  And I continue to think that John Katich deserves our admiration in this regard.  But, alas, they still represent a distinct minority of ostensible Republican "leaders."  It is not only that purported "leaders" continue to enable the sociopath; it is that the only thing they are doing is professing outrage at his sexual predation, but doing nothing at all to suggest that Secretary Clinton is in fact not the devil.  There are Republicans in the Senate who remember her as an effective senator, more than willing to work across the aisle.  But they are terrified to say so because of the atmosphere created by the sociopath and his truly deplorable enablers.  Should my fears of our collective future turn out to be at all realistic, the purported "leaders" who are absolutely afraid even to concede the basic competence of Secretary and former Senator Clinton will deserve at least as much blame as the sociopath.

Incidentally, the seeming acquiescence of Republican "leaders" in the demonization of Hillary Clinton has serious consequences of the future of the Supreme Court.  Assume she wins and the Republicans keep the Senate.  Will they confirm any  of her nominees to the Court, given that the principal reason that Ted Cruz, for example, gives for his support for the sociopath is the necessity to prevent the Court from going Democratic.  So assume that the Democrats get control of the Senate.  First, they will have to eliminate the filibuster for Supreme Court appointments.  But then, and perhaps more seriously, the country would have to accept the legitimacy of any appointments made under such circumstances.  Would the GOP be willing to do that, i.e., to admit that "elections have consequences" and that Hillary and the Democrats won fairly and squarely and get to do what winners do?  Or would they, on the other hand, simply continue the language of demonization and delegitimization that threatens the stability of the entire political order?

A final point:  Some discussants have taken issue with my reference to the Republican candidate as a "sociopath," on the basis of the altogether correct observation that I am not professionally qualified as a psychologist.  I would take that criticism more seriously if the basis of the sociopath's campaign (as was true, incidentally, by and large for those who supported Brexit), was not a systematic repudiation of experts and expertise.  These are, after all, people who proudly disdain what has come to be a scientific consensus about global warming and the threat it presents to all of us if we don't try to confront it seriously.  (Note, incidentally, that the worst ravages of the recent hurricane were i two states, Florida and North Carolina, whose Republican governors and legislatures systematically refuse to fund any research that might even suggest that climate change is a reality and that state need to adjust accordingly.  If one believed in providential history, a la Cotton Mather, one might say that my home state of North Carolina is getting what it has richly earned for putting the state in the hands of expertise-hating neanderthals.  Fortunately, I don't believe in providential history, so I don't think that the actual victims of the flooding deserve their fate, but the political "leaders" of North Carolina certainly deserve to be thrown out of office as soon as possible.)  Getting back to the main point, I note that those who support the sociopath simply are indifferent to the fact that no reputable economist supports him, and one could present much more evidence of the extent to which the sociopath prides himself on his disdain for anything that might be described as "evidence" or "expertise."  Perhaps this still doesn't license me to call him a "sociopath" inasmuch as I do claim to take evidence--and expertise--seriously.  Would it suffice to describe him simply as a man who gives no evidence whatsoever of thinking of anything other than satisfying his own insatiable desires, whether for money, fame, or the submission of vulnerable females?  I.e., is he really anything other than the Holmesian "bad man" run riot?

The only two questions I'm interested in reading comments on are the following:

Are Republicans and/or supporters of Donald Trump willing to concede that Clinton is competent to be president and that the system that will very likely elect her is legitimate?  If the former is true, then why aren't more Republican "leaders" saying that, even as they go on to say that they oppose her policies and think they would be bad for the country, which is certainly "fair comment"?  But that's different from pronouncing her a threat to our very survival.

If it is fair to expect me to adhere to professional boundaries in making comments about Mr. Trump's psychological state, then should one expect equal respect for professional expertise on the part of him and his supporters.
Posted 11:21 PM by Sandy Levinson [link] (119) comments

Why Trump is Not a Threat to the Rule of Law (More than Already Exists)

Brian Tamanaha

Yesterday and today the New York Times published articles suggesting Donald Trump would endanger the rule of law:

When Donald J. Trump told Hillary Clinton at Sunday's presidential debate that if he were president, "you'd be in jail," he was threatening more than just his opponent. He was suggesting that he would strip power from the institutions that normally enforce the law, investing it instead in himself.

In fairness to Trump, that's not what he was suggesting. It was a dumb, smart aleck quip in response to Secretary Clinton's comment, which came after his assertion that he would seek the appointment of a special prosecutor to investigate her problematic handling of classified emails. His reference to the special prosecutor recognizes that legal processes are required for her to be indicted, so he was not suggesting he would strip power from legal institutions. Overlooking this context, the articles cite former high-ranking legal officials (including Republicans) and academics who liken his position to authoritarian dictators past and present.

I say this not to defend the indefensible Trump, but to suggest that it is a mistake to focus on him rather than on the institutions that give rise to the rule of law. Leaders with authoritarian personality traits are common, but authoritarian governments exist only when surrounding institutions enable them to express their authoritarian impulses and do not throw up barriers to restrain them. Imagine for example Vladimir Putin as POTUS--he would have few of the (de facto) powers over law now exercised by the current President of Russia. As long as our legal and political institutions remain resilient, we need not worry about Trump becoming an authoritarian leader. (Never mind that Trump lacks Putin's ability and ruthlessness.) And these institutions, ultimately, are made up of the beliefs, attitudes, commitments, and practices of the people who hold official positions. (Several people quoted in the articles emphasize institutions.)

This is not to say we should not be worried about the rule of law. We have already seen Presidents take actions that disregard law. The Bush-Cheney torture program (enabled by high legal officials, though resisted by others), followed by the refusal of the Obama Administration to prosecute those responsible, are two notable examples. The NSA surveillance program, the failure to prosecute bank officials for activities leading to the financial crisis, the killings of citizens by the drone program, are other potential examples, and others can be given (including extensive regulatory changes through executive orders). I'm not saying all of these examples involve illegal or extra-legal actions--to draw that conclusion requires extensive knowledge of legal and factual details about each that I lack. But it does seem evident that these situations raise serious legal issues and have not gone through ordinary legal processes.

So if Trump does become president (a chilling thought) and thereafter engages in authoritarian actions, the blame lies with us collectively.
Posted 6:59 PM by Brian Tamanaha [link] (71) comments

Hypocritical Court?

Marty Lederman

The Supreme Court’s motto may be “equal justice under law.”  But sometimes it seems more like “do as we say, not as we do.”

Consider Williams v. Pennsylvania, a case the court heard in February concerning whether a state judge should have recused himself from a capital case in which he had an earlier involvement.  At one point during the hearing, Justice Elena Kagan, who participated in both Supreme Court lawsuits concerning the Affordable Care Act despite having served as solicitor general in the Obama administration, asked what would constitute “significant involvement” in a case — i.e., enough to require a recusal.

The answer to that question may not be obvious.  But surely Justice Kagan’s experience in the Obama administration constituted “significant involvement” in the Affordable Care Act cases.  In the end, a majority of justices, including Justice Kagan, ruled in Williams v. Pennsylvania that the judge who refused to recuse himself should have stepped aside.

"Surely"?  Wrong.  To this very day (see her recusal this morning from the Court's consideration of No. 16-5794, Kirtman v. United States), six years into her tenure, Justice Kagan been very careful to recuse herself from any cases in which she was involved as Solicitor General--from all cases on which she worked or was the supervising attorney.  These have included some very important, high-profile cases, such as the Fisher affirmative action case.  As SG, however, she decided not to work on any cases involving the ACA; instead, she delegated her deputy, Neal Katyal, to supervise that litigation.

Thus, not only didn't she have any "significant" involvement in the cases--she didn't have any involvement at all.  And therefore it was perfectly appropriate, and not the least bit hypocritical, for Justice Kagan to participate in ACA-related cases when they reached the Supreme Court.
Posted 9:35 AM by Marty Lederman [link]

Will the U.S. Survive the 2016 election (continued)?

Sandy Levinson

So, last night's "debate" featured one candidate saying that her opponent was not fit to be President, which is surely true, and the other indicating that he would, if elected, use all the power at his disposal to jail Secretary Clinton, who is actually a "devil."  So I continue to wonder what the concessions will look like on November 8.  Can Secretary Clinton really call on all of us to be good sports and rally round a sociopath who is indeed not remotely fit to be President?  That conclusion is now attested to by an ever increasing group of Republicans, some of whom took longer to reach this conclusion than others, but who have nonetheless reached it.  She said at the conclusion of the last debate that she would accept the voters' verdict, but one must truly ask why, if in fact it is the case, as it surely is, that he is a sociopath who should not be let within 100 yards of actually legal authority.  And, of course, no one--and I mean literally no one--believes that the sociopath could possibly gain even close to majority of the popular vote.  Any win continues to be dependent on our insane system established by the Framers in 1787 partly because of mistrust in ordinary Americans and at least as much to reward slaveowning states and otherwise removing any incentive for those elites controlling state government actually to let their citizens vote.

One might rely on supporters of Secretary Clinton to be at least supine, if not "good sports" in accepting a victory by the sociopath.  But that is surely not the case with that portion of the sociopath's constituency that is in fact thoroughly deplorable.  In a new book that I edited, just published by the University Press of Kansas, Nullification and Secession in Contemporary Constitutional Thought, Jared Goldstein of the Roger Williams School of Law has an absolutely superb essay analyzing the constitutional theories of various militia and similar movements, including that of the Bundys (the son of whom is currently on trial for occupying federal lands in Oregon).  Anyone reading his essay must realize, first and foremost, that members of these groups are absolutely serious in believing that they are devoted to the one true Constitution that has, in their view, been systematically violated by those actually running the contemporary United States.  And, unlike those on the left, they have guns that they see as essential tor existing an oppressive government.  The sociopath who claims to represent the Republican Party (and who, of course, received a record number of popular votes on his way to the nomination) is playing to far more than simply the "alt right" view of the United States.  He is giving aid and comfort to what might well be called "insurrectionism."  That is surely one of the meanings of his support for the Second Amendment, which the far right recognizes has precious little to do with individual "self-defense" and everything to do with mounting an uprising, similar to that of the America secession of 1776 (and, of course, the unsuccessful secession of 1861).  Even in the extraordinarily unlikely event that the sociopath emerges as a "good sport" and congratulates former Senator and Secretary Clinton on winning a well-run race, will the "deplorable" who continue to support Trump regardless of any evidence that might suggest his unfitness for office simply decide to wait for 2020?  Or will at least some of them be tempted to engage in guerrilla warfare against a government they view as illegitimate (and, of course, encouraged to do so by the tax-avoiding sociopath who proclaims that any money he might otherwise have ponied up would simply be wasted)?  Several years ago, a number of people, including some within the government, were so bold as to suggest that the principal terrorist threats to the US came from white Americans affiliated with the far right.  (Just think of Timothy McVeigh.)  That, of course, was not "politically correct," so those suggestions were modulated and all of our attention was focused by those who claim to be critics of "political correctness" on the threat coming from Muslims.  We may have the opportunity to test the empirical truth of these varying claims following the Trump defeat.

Two final points, for what they're worth.  First, we should resist responding to the sociopath's threat last night to make sure that Secretary Clinton would be jailed by proclaiming that this was absolutely unAmerican, that we decide our differences by ballots and not by jailing our opponents.  With respect, try telling that first to Eugene V. Debs and then to the various Communists who were jailed in the heyday of the Red Scare following World War II.  Debs remains the most significant American socialist leader in our history, and the response of the egregious Woodrow Wilson, backed by a unanimous decision written by Oliver Wendell Holmes (which never once mentioned Debs's name or gave any clue as to who he actually was), was to jail him for ten years.  The underrated Warren Harding pardoned him and invited him to the White House!  None of the various jailed Communists had the luster of Debs, but jailing them was surely not our finest hour.  What is different about last night is that a truly major party candidate was threatened with imprisonment by her sociopathic opponent.  We certainly shouldn't take that threat lightly in terms of revealing ever more about the sociopath's (and his supporters' ) conception of politics, but let us refrain from adopting a view of American exceptionalism that denies the reality of Debs and the Communists.

Secondly, the sociopath revealed his complete and utter ignorance of the way our constitutional system works (for better or worse) not only in his suggestion that as President he could assure the appointment of a special prosecutor who would be devoted to putting Secretary Clinton in jail, but also, and just as revealingly, by his repeated insistence that Sen. Clinton surely could have gotten rid of the carried interest provision of the tax code if she really wanted to.  She reminded him not only that her name was on 400 pieces of legislation, but also, more importantly that individual senators, whatever their ability, don't have magic wands that can assure that their desires are translated into public policy.  She noted, for example, that the Senate was Republican for 4-1/2 years of the time she was in the Senate; moreover, and just as importantly, the President, with his veto power, was also a Republican.  Only a completely ignorant person could believe that the failure of Sen. Clinton (or any other senator) to achieve all of her policy goals is evidence of her own failures of nerve.  But, of course, what is being projected is not only the Republican candidate's complete and utter ignorance of the basics of the American political system but also his inner authoritarian narcissism.  No doubt he does believe that if only he were president, then everyone would bend to his will--and we know from the tapes what that means for many women.

It does appear that we are likely to escape the catastrophe of a sociopathic president.  But, as I've suggested on previous occasions, that should not in the slightest truly reassure us that we have a healthy political (or constitutional) system and that the aftermath of the election won't simply be continued gridlock (unless, of course, the Republican Party is truly destroyed, as they deserve to be, by a wave election that gives Democrats both the House and the Senate as well), but also violence by would-be constitutional "patriots" who reject in toto the legitimacy of the American national government.  Indeed, the breaking of gridlock via a two-year period of disciplined Democratic hegemony in Congress, assuming that in fact is possible given fractures within the Democratic Party itself, might well be to encourage insurrections by those who take seriously the claims by Rudy Giuliani, some ostensible Evangelical leaders, and others that this is literally the last opportunity to stop America's fatal decline.

As always, I am allowing comments.  But, as is frequently the case, I'm not in the least interested in whether you share my views of the Republican candidate or his opponent (or, indeed, the likelihood of the electoral outcome next month).  The one and only thing I'm interested in reading comments about is whether you find it truly over-the-top to suggest the empirical consequences of a Clinton victory, especially if brings Congress in its wake, for at least some significant (and armed) portion of the sociopath's "base."
Posted 5:04 PM by Sandy Levinson [link] (123) comments

The Chicago Cubs and the Boston Red Sox

Rick Pildes

As the Chicago Cubs begin their quest to return to the World Series for the first time since 1945, and to win it for the first time since 1908, I can't help recalling the most unique experience I've had in my "legal career" (in quotes, for reasons you will see).

Back in 2004, ESPN decided to hold a formal trial and produce a program called:  The Red Sox or Cubs:  Whose Curse is Worse?  At the time, the Red Sox had not won the Series since 1918.  Harvard's rabid Boston sports fan, Alan Dershowitz, represented the Red Sox; as a native Chicagoan and long-suffering Cubs fan, I was asked to represent the Cubs.  EPSN put together a panel of jurors, and we tried the case in a baroque, beautiful old New York courthouse in front of a former judge. The trial was complete, with opening and closing statements, and direct testimony and cross-examination of eight witnesses.



Of the four witnesses assigned to each side, two were former players; one was a sports journalist who covered the team; and one was a representative "every fan" for each team (for the Cubs, it was George Wendt, aka Norm of "Cheers").  One of my best witnesses was Cy Young award winner Rick Sutcliffe, who is now one of the ESPN's top baseball analysts (and quite a character in person); I got to cross-examine figures like the great Luis Tiant and Bill "Spaceman" Lee.

"Winning" meant proving your team's curse was worse.  Dershowitz won, no doubt because New York jurors knew far more about the Red Sox than the Cubs.  But history vindicated me.  The Red Sox soon went on to win three Series' titles, while here we still are, 12 years later, waiting for our first appearance in the Series.

But of course, this is the year.  The ending of the truly worse curse in baseball begins tonight...

 
Posted 12:42 PM by Rick Pildes [link] (12) comments

A Crisis of Representation

Guest Blogger

Posted 11:51 AM by Guest Blogger [link]

Solicitation Fraud: The Important Difference Between “Not Intending to” and “Intending Not to”

Ian Ayres

Jim: We are deeply disappointed. If you change your mind for any reason, please let us know. In the meantime, can you please tell us who is publishing the article? We are trying to figure out who we are losing articles to in the hope of competing better. * * *
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Posted 8:00 AM by Ian Ayres [link]

Money in Politics: How Far Does the Egalitarian Position Go?

Rick Pildes

Posted 3:20 PM by Rick Pildes [link] (73) comments