Written in Stone 2020

Sandy Levinson

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Posted 3:59 PM by Sandy Levinson [link] (130) comments

The Lost Court Decision that Could Have Resolved Texas v. California

Guest Blogger

Timothy Jost


As Texas v. California, the lawsuit seeking to invalidate the entire Affordable Care Act, continues its steady march toward a Supreme Court decision, the issue that has emerged as the most important in the case is that of severability—if the Court finds the individual mandate unconstitutional, as both the district court and Fifth Circuit did, how much of the rest of the ACA must be jettisoned with it?
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Posted 9:30 AM by Guest Blogger [link]

Masks and Rights Talk

David Super

     I am struck right-wing protesters’ repeated, adamant insistence that mask-wearing requirements violate the Bill of Rights.  The (utterly unfounded) claims that it is unnecessary and the (abjectly paranoid) assertions of an elite conspiracy to promote masks are sadly pretty ordinary in today’s political environment.  But the normative “rights talk”, and the attempt to ground it in a conception of constitutional law, seems different and worthy of more attention.  I remain completely unpersuaded that mask requirements offend any basic rights.  But as someone interested in popular constitutionalism, I feel the need to unpack this specific invocation of the Bill of Rights.  What could it mean? 

Posted 5:29 PM by David Super [link]

Bostock, LGBT Discrimination, and the Subtractive Moves

Andrew Koppelman

Posted 1:50 PM by Andrew Koppelman [link]

Ruling today in Soos v Cuomo

Jason Mazzone

I previously posted on Soos v Cuomo, the lawsuit by two Catholic priests and several Orthodox Jewish congregants challenging New York's continued restrictions on religious gatherings. I suggested that the First Amendment requires the state to explain why state officials have restricted religious gatherings but encouraged mass protests against police violence. I noted also the odd fact that in its initial response to the lawsuit New York failed even to address the issue much less explain the distinctions the state drew. Today the district court granted the plaintiffs' application for a preliminary injunction. The court's rationale is that the plaintiffs are likely to succeed on their claim that the state violated the Free Exercise Clause because in exempting (without discernible justification) certain non-religious activities, the state's purported risk-based regulations were not generally applicable. We'll see what happens in the likely appeal. Meanwhile, another lawsuit, Association of Jewish Camp Operators v. Cuomo, has now been filed, challenging the state's ban on Jewish overnight camps. It, too, makes the argument that New York has favored some expression over others in ways that do not reflect risks of transmission. A hearing is scheduled for next week.
Posted 1:15 PM by Jason Mazzone [link]

Eric Segall interviews me on Supreme Myths

JB

Posted 10:30 AM by JB [link]

Unoriginal Joke (Part III): Living Constitutionalism and Social Progress

Guest Blogger

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Posted 9:30 AM by Guest Blogger [link]

Can This Administration Absolve Its Friends of Crime?

David Super

Posted 4:32 PM by David Super [link]

The Deeply Concerning, Misguided D.C. Circuit Mandamus Ruling in the Flynn Case

Marty Lederman

Originally posted at Just Security

Yesterday morning—in a stunning decision that broke from usual standards of judicial process and self-restraint—D.C. Circuit Judges Neomi Rao and Karen LeCraft Henderson granted Michael Flynn’s preemptive mandamus petition to shut down Judge Emmet Sullivan’s consideration of the government’s motion to dismiss the criminal charge against Flynn.  The court ordered Judge Sullivan “to grant the government’s Rule 48(a) motion to dismiss” the charge before the judge even considers the merits of that motion, apparently in order to prevent him from convening a hearing on it.  Judge Robert Wilkins dissented.

The oral argument gave little hint that this was coming.  Indeed, Judge Henderson repeatedly noted both that Judge Sullivan hadn’t even had the chance to rule yet, and that Flynn could remedy any injury by appealing if and when Sullivan denied the government's motion and entered a judgment of conviction—both of which made mandamus a singularly inappropriate remedy here.

As I’ll explain below, the panel’s decision is plainly wrong and the en banc court of appeals will almost certainly reversed it if the case reaches that stage.  But it now stands as the law of the D.C. Circuit, and everyone who cares about the state of the federal courts should take notice.

Before explaining why I believe it’s clear that the panel erred in several important respects, I should stress once again that I don’t really care much—and I think you shouldn’t either—whether Michael Flynn is ultimately convicted for willfully making false material statements in his January 24, 2017 interview with two FBI agents, or whether Flynn ever spends any time in prison (something that’s very unlikely in light of the President’s pardon power).  In part this is because (as I’ve previously recounted) many acts of misfeasance by other actors in this affair—from the President to Attorney General Barr to former FBI Director Comey—have been more damaging to governmental functions and norms than Flynn’s false statements were; and in part it’s because Flynn’s lies to the FBI weren’t remotely his own most egregious actions, before or after January 24, 2017—indeed, they weren’t even the most damaging criminal offenses he committed.

Whatever one thinks of Flynn’s misconduct and whether it merits criminal punishment, however—and whatever you think of the damage Attorney General Barr has done to the reputation for the evenhanded administration of justice in the Executive Branch, including in the Flynn case itself (see also my second Flynn post)—in today’s decision Judges Rao and Henderson have touched a new nerve by damaging the integrity of the judicial process.  And that raises an entirely different order of concern.  [UPDATE:  Orin Kerr is right that the decision is obviously redolent of Bush v. Gore, in that the higher court in each case "astonishing[ly]" "told the lower court to just flat out stop what it was doing."  In Flynn, as in Bush v. Gore,

you would have expected the lower court to be able to rule on the motion.  A motion to dismiss was filed, and the district court was considering it and wanted to hear different perspectives before ruling.  Judges get motions, consider them, have hearings, and rule on them all the time.  That's the way it normally works.  Instead, the D.C. Circuit concluded that the district judge couldn't even consider the question.  Merely having a hearing on how to decide the motion is a harm, the court concluded.  And the court didn't trust the district court to approach the law the right way if they let him proceed in the normal way.  So remarkably, the D.C. Circuit just took control and told the lower court to stop it.]

There are three major errors at the heart of Judge Rao’s opinion.

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Posted 11:36 AM by Marty Lederman [link]

Optimistic Originalism, the Sequencing Problem, and Chris Green on the Sense-Reference Distinction (Part III)

Stephen Griffin

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Posted 10:56 AM by Stephen Griffin [link]

Unbundling DACA and Unpacking Regents: What Chief Justice Roberts Got Right

Guest Blogger

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Posted 10:00 AM by Guest Blogger [link]

AMA: Chris Green asks about "constitutional truthmakers"

JB

In this installment, Chris Green asks some very interesting theoretical questions about whether there is a single "constitutional truthmaker," and he proposes a single test that will decide all questions of constitutional interpretation.

Chris Green: Do you think there is unitary constitutional truthmaker (see https://ssrn.com/paper=2901157 ), i.e., a single reality that tells us when the Supreme Court’s constitutional interpretations are wrong? Is it possible to get from “text and principle” to a single reality that renders constitutional claims true or false?  By my lights, “the principle expressed by the text in its original context” would do the job.

JB: By "truthmaker," I assume that you mean something that makes a proposition about the correct interpretation of the Constitution true. I would divide the concept of a truthmaker into necessary and sufficient conditions. Some things might be *necessary* to make a proposition about the interpretation of the Constitution true, while others would be *sufficient* to make it true.

I am an originalist. So I think that, in order to be true, an interpretation of the Constitution must be consistent with original meaning (in the thin sense). With respect to necessary conditions, then, I believe that there is a truthmaker.

But I do not think there is a single sufficient condition for an interpretation of the Constitution to be true. That is, I don't think there is a single criterion that ensures that a proposition, otherwise consistent with original meaning, is also the one true and correct interpretation of the Constitution. There are three reasons for this.

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Posted 9:30 AM by JB [link]

Balkinization Symposium on Linda C. McClain, Who's the Bigot?: Learning from Conflicts over Marriage and Civil Rights Law: Collected Posts

JB

Here are the collected posts for our Balkinization symposium on Linda McClain's new book, Who's the Bigot?: Learning from Conflicts over Marriage and Civil Rights Law (Oxford University Press, 2020).


1. Jack Balkin, Introduction to the Symposium

2. Aziza Ahmed, Law, Bigotry, and Expertise

3. Randall Kennedy, Obama as “bigot”? Me as “bigot”? You as “bigot?

4. Cathleen Kaveny, Reason, Feeling, and Religion: A Response to Linda McClain

5. Andrew Koppelman, Who’s the Nazi?

6. Imer B. Flores, The Rhetoric of Bigotry: Hate, Insincerity, and Intolerance

7. Dale Carpenter, Bracketing Bigotry

8. Linda McClain, Reply to Six Commentaries on Who’s the Bigot?



Posted 9:30 AM by JB [link]

A university faculty speaks its mind

Sandy Levinson

Approximately 80% of the faculty of the George Washington School of Law, including several of its former Deans, signed an extremely strong statement criticizing William Barr.  To describe it as simply a "statement" is misleading, for it sets out an extensive bill of particulars lamenting the reality of William Barr as Attorney General.  What makes the statement so striking, though, is the institutional connection between George Washington and William Barr.  He received his law degree from that institution; he received an honorary degree twenty years later upon serving George H.W. Bush as Attorney General.  He is also described as someone who has given generously and otherwise raised significant money for the Law School.

I have on other occasions indicated by deep and abiding respect for Michael Gerson, whom I've never had the honor of meeting.  This former speechwriter for George W. Bush, an Evangelical Christian, has consistently and courageously criticized not only Donald J. Trump, but also many of his fell Evangelicals for in effect selling their souls to that truly despicable charlatan.  Why I admire him is not only his views; I can find them articulated by, say, David Remnick in the New Yorker or Paul Krugman in the New York Times.  But I'm confident that neither Remnick nor Krugman has lost any friends by their militant criticisms of Trump.  That is surely not the case with Gerson, or other never-Trumpers like George Will, Jennifer Rubin, Max Boot, Bill Kristol (whom I used to despise because he was simply a lackey for the Republican Party, and, of course, George Conway.  They have undoubtedly paid real personal costs that liberals have not paid in their criticisms of Trump.  That is something worth honoring in these parlous times.

Similarly, the George Washington statement is powerful for reasons going beyond its words and de facto indictment.  Many law professors, across the country, would no doubt agree with it and be willing to sign it if asked.  But none of us would be making the same kind of powerful institutional statement, i.e., denouncing an illustrious alumnus and benefactor "simply" because he had disgraced the idea of how to live an honorable life as a lawyer.  All universities have alums we are proud of and those that should make us cringe.  It is not unthinkable that the 2024 race within the Republican Party will boil down to Harvard Law School alumnus Tom Cotton and Yale Law School graduate Josh Hawley, just as the Harvard Law School gave us both Barack Obama and Mitt Romney in 2012.  Although individual faculty members of these (and other institutions) will no doubt express vigorous views, I would be astonished if a collective effort were made similar to that of the George Washington folks.  Quite frankly, it represents a breach of modern decorum with regard to eminent--and monied--alums.

It is one thing for Oriel College at Oxford to take down its statue of Cecil Rhodes (assuming that finally happens).  It would be quite another for the University to denounce its alumnus Boris Johnson for his mishandling of the Corid-19 virus or, for that matter, his rank dishonesty and mendacity with regard to arguing in behalf of Brexit (and lying to the Queen about proroguing Parliament).  "Speaking truth to power" is not for the faint of heart--or university administrators seeking funds.  But the signatories of the George Washington statement will be able to look in the mirror and know that they have stood up in defense of whatever the "rule of law" might actually mean in this post-Realist world.  (See, e.g., Robert Jackson's opinion in Youngstown Steel, which I continue to believe is the best single opinion ever written as a truly "adult" discussion of the concept.)
Posted 6:40 PM by Sandy Levinson [link]

Are oaths "absurd" or simply pathetic? Reflections of the Balkin-Green exchange

Sandy Levinson

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Posted 4:43 PM by Sandy Levinson [link] (74) comments

AMA: Chris Green asks about the Oath

JB

This is the second installment in my AMA. Chris Green asked a number of interesting theoretical questions. I will answer them in installments. I change the order of the questions to group together questions that are about the same basic subject.

Chris's first question is about the Article VI oath, and, indirectly, the current debate among constitutional scholars about whether the oath commits everyone who takes it to a particular version of originalism.

Chris Green:What does “the Constitution” in our present-day Article VI oaths refer to, and why? (See https://ssrn.com/paper=3441234).

JB: Article VI requires that "The Senators and Representatives before mentioned, and the members of the several state legislatures, and all executive and judicial officers, both of the United States and of the several states, shall be bound by oath or affirmation, to support this Constitution." Article II requires the President to take an oath to "preserve, protect and defend the Constitution of the United States."

I read the President's Article II oath as consistent with the Article VI oath for all executive officers of the United States. This is true whether or not you you believe that the President is an "executive officer ... of the United States," because every executive officer who works under the President must take the Article VI oath.

There are two plausible answers to your question. One is that "this Constitution" refers to the best interpretation of the Constitution (as opposed to the current interpretation). The other is that "this Constitution" refers to the Constitution as an ongoing legal and political institution and says nothing about interpretation. Let me address both possibilities in turn.

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Posted 9:31 AM by JB [link]

A Barr-Trump Commission of Inquiry?

Mark Tushnet

Posted 11:12 AM by Mark Tushnet [link] (61) comments

Stars Get the Calls

Gerard N. Magliocca

In response to some disappointing results in the Supreme Court this week, the President wondered aloud today on Twitter: "Do you get the impression that the Supreme Court doesn't like me?"

Sort of. A better way of putting this goes back to the Chief Justice's famous line in his confirmation hearing about being an umpire calling balls and strikes. As sports fans know all too well, though, star players gets more than their fair share of favorable calls. Perhaps that's because they command more respect from the referees. Perhaps it's because the referees think that they will get criticized more if they make a call against a star. Whatever the reason, that sort of bias is probably real.

A similar thought works for a president and the Supreme Court. Unpopular presidents fare worse in close cases that directly concern them. It's no coincidence that two of the leading decisions curbing presidential power (Youngstown and Nixon) came when President Truman and then President Nixon had approval ratings in the 20s. To some extent, this is just the Madisonian system: When one branch is weak the other branches try to take advantage. Strong presidents don't always win, of course, but they are more likely to win.

We won't know until the tax return cases are decided whether the Court is truly treating President Trump as a benchwarmer. But things are trending in that direction.  
Posted 2:04 PM by Gerard N. Magliocca [link] (156) comments

The Great Debate in the Conservative Legal Movement

JB

There is a great ferment among conservative legal intellectuals these days. This post is summary of what I think is happening, written from the perspective of an outsider. Although I am an originalist, I am also a political liberal. But I have many friends in the conservative legal movement and because of my scholarly agenda, I watch developments in the movement with great interest.

Since the second half of the 20th century, American conservatism has been a fusion of different approaches, including libertarians, small government conservatives, business interests, national security hawks, social conservatives, religious conservatives and paleo-conservative or "Old Right" nationalists who tended to be anti-immigration and isolationist. People often fell into multiple camps, and their ideas sometimes shifted over time.

The conservative legal movement arose of of this fusion. Together and separately, these various groups in the conservative constellation sought and pushed for a jurisprudence that would promote their values and show why their political opponents' legal views were incorrect. This is hardly surprising. Every jurisprudential movement that I can think of has been associated with a politics. And the very idea of a conservative legal movement should be a tip-off that the goal of the movement was to promote... well, conservatism.

By the 1980s or so, originalism had become the lingua franca of the conservative legal movement, with textualism (especially in statutory construction) following shortly thereafter. One didn't have to be either an originalist or a textualist to be a conservative legal intellectual, but the language of originalism and textualism was a convenient shorthand to describe what conservatives were for (and, equally important, what they opposed). Over the years, conservative judges and legal intellectuals developed jurisprudential theories designed to promote and apply both originalism and textualism.

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Posted 11:31 AM by JB [link]

Reply to Six Commentaries on Who’s the Bigot?

Linda McClain

For the symposium on Linda McClain, Who’s the Bigot? Learning from Conflicts over Marriage and Civil Rights Law (Oxford University Press, 2020).

Thanks very much to Sandy Levinson for organizing this wonderful symposium on Who’s the Bigot? and to Jack Balkin for providing space on Balkinization. I am grateful to contributors Aziza Ahmed, Dale Carpenter, Imer Flores, Cathleen Kaveny, Randall Kennedy, and Andrew Koppelman for their insightful and instructive comments. I will address some general themes and then respond to a few specific points.

All of the commentators correctly observe the provocative power of the term “bigot.” As Dale Carpenter succinctly puts it: “When it comes to bigotry, Americans agree on three things: (1) bigotry is very bad; (2) they are not themselves bigots; and (3) some other people, mostly those who disagree with them, are bigots.” Both Imer Flores and Andy Koppelman stress how “toxic” a charge of bigotry is. While I recognize the “conversation-stopping” force of the charge of bigotry—and conclude that “the rhetoric of bigotry is sometimes necessary and appropriate, but at other times, there are more constructive ways to talk about prejudice, intolerance and discrimination”—Flores argues that “the rhetoric of bigotry” can “never be appropriate” because of the dynamic of “flipping the charges” so that the accuser is the real bigot. My book discusses this dynamic in several contexts, including debates over the Civil Rights Act of 1964 and over LGBT rights today.

I am grateful to Carpenter for suggesting that the best answer to the question of whether the rhetoric of bigotry is ever or “never” appropriate “depends on the forum in which the charge is made.” He helpfully recounts his own experience, in the campaign to defeat an anti-same sex marriage ballot proposition in Minnesota, training volunteers whose mission was to have “conversations” with voters to persuade them to vote against the amendment. Carpenter recounts  the instruction that, “above all, nobody was to be called a bigot or have their opposition labeled bigotry” because “this was a conversation-stopper, and our side needed above all to have conversations” that opened the door to understanding that “gay couples wanted to marry for the same basic reasons” the people they were calling did. For the “young and mostly enthusiastic volunteers,” this created some “cognitive dissonance,” since they believed that opponents of same-sex marriage “were necessarily bigots” and that arguments against same-sex marriage “were necessarily rooted in bigotry or were pretexts for bigotry.”  (Carpenter indicates he did not share this view.) Happily, the campaign was successful. Carpenter attributes the subsequent enactment of a law permitting same-sex marriage to the “groundwork of persuasion” laid by the campaign. I share Carpenter’s conclusion that hesitation to “call out bigotry” may be appropriate when the goal is persuasion and conversation.

I also agree with Carpenter that “as a matter of pragmatism, there are times when making actual progress toward equality entails bracketing the question of bigotry.” He gives the example of finding common ground to oppose discrimination based on its harmful effects without labeling what motivates people to discriminate. Here, I suggest, attention to historical context is helpful. During the debate over the Civil Rights Act of 1964, some proponents did not hesitate to use the rhetoric of bigotry to insist that ending discrimination in public accommodations and other areas of life was necessary: in Senator Thomas Kuchel’s words,  “Our spirit is not narrow bigotry.” But precisely because racism now stands—or should stand—as a primary example of properly-repudiated bigotry, present-day rhetoric of bigotry is highly charged for it carries with it evocations of this repudiated past.

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Posted 9:38 AM by Linda McClain [link]

Protests/Religion: Soos v. Cuomo

Jason Mazzone

In a recent post I said that in order to justify its continued COVID-19 restrictions on social, religious and business activities, the government should have to explain why large numbers of individuals (many without masks and most not following social distancing protocols) have been able to assemble to protest police misconduct. I was therefore very interested to see how New York would respond to the lawsuit by two Catholic priests and several Orthodox Jewish congregants challenging the state’s restrictions on religious gatherings. A principal claim of the lawsuit is that by permitting large-scale policing protests the state cannot assert that its regulations are simply based on risk-based considerations and that the state is unconstitutionally disfavoring religion. Yesterday, New York filed its response to the plaintiffs’ application for preliminary injunctive relief. New York asserts that COVID-19 restrictions are based entirely on risk considerations and that it is treating religious gatherings the same as other gatherings that present comparable risks. I therefore read on to learn why protests against police practices do not pose COVID risks or why allowing the protests to proceed does not cast doubt on the constitutionality of restrictions imposed upon other gatherings. Astonishingly, New York says nothing at all about the protests. Nothing in its memorandum. Nothing in the attached declarations that set out the state’s rules and the reasons for them. Indeed, the word “protest” does not appear in any of the state’s submissions. It is hard to imagine the state’s lawyers didn’t see this aspect of the plaintiffs’ case or that the state is just conceding that it has no legal basis for treating policing-related protests differently from other gatherings. Ignoring the central claim of a lawsuit is a very peculiar litigation strategy. Argument is scheduled for tomorrow at 1 pm. Let’s see what New York has to say for itself.
Posted 3:10 PM by Jason Mazzone [link]

AMA: Questions from Charles Barzun

JB

As a result of a Twitter exchange last week, I have agreed to answer questions from a group of constitutional scholars about my work. Here is the first set of questions from Charles Barzun. More installments will follow.

Charles Barzun: My questions come in the form of two hypotheticals, both of which go to what I see as a central tension in your book [Living Originalism], the nature of which I think will be clear. 

Imagine that two justices, A and B, are both put on the Court within months of each other by the same President.  Assume the selection and nomination process worked in precisely the way you describe in  your book and that it followed a period of intense of broad-based social activism, channeled through party politics, in support of a fairly concrete constitutional agenda (which of course both justices denied any awareness of during the nomination hearings).   Once on the Court, both Justices practice the “method of text and principles,” but they do so in different ways and for different reasons.  In the cases relevant to the party’s constitutional agenda, Justice A carefully monitors the media (and social media)  and tries to figure out what results the President, the party, and the activists want in the cases before her.  Justice B, meanwhile, ignores the media and tries to read the briefs without being predisposed to a particular outcome.  The result is that over  the next several years, Justice A delivers results that make the party and activists happy nearly every time, whereas Justice B does so only some of the time.  Other times, she reaches results frustrate the constitutional agenda of the political movement that  resulted in her being placed on the Court.

Who is a better Justice, A or B?  Why? (Note that this is not a question about interpretive method; both justices apply the method of text and principle).

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Posted 11:00 AM by JB [link]

Bracketing Bigotry

Guest Blogger

For the symposium on Linda McClain, Who's the Bigot?: Learning from Conflicts over Marriage and Civil Rights Law (Oxford University Press, 2020).

Dale Carpenter
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Posted 9:30 AM by Guest Blogger [link]

The dangerous Kavanaugh dissent in Bostock

Andrew Koppelman

Today, in Bostock v. Clayton County, the Supreme Court held that the Civil Rights Act of 1964 prohibits employment discrimination against gay and transgender people. That was obviously the right result, but three justices dissented. Brett Kavanaugh’s effort to evade the obvious conclusion was cleverer than Samuel Alito’s (which Clarence Thomas joined), but it was also more dangerous, because his approach would gut any law that aims to bring about significant social change.

I elaborate in a new piece at The American Prospect, here.
Posted 7:07 PM by Andrew Koppelman [link]

Applying Basic Political and Legal Principles in Addressing Our Current Crisis

Guest Blogger

Robert Pushaw

America's ongoing racial strife should prompt deep reflection.  Professors who have dedicated their careers to studying law, government, political science, and history should share their expertise by providing reasoned opinions, while humbly recognizing that we have limited policy influence.  In this spirit, I have tried to identify certain core legal and political ideas and realities that Americans should keep in mind as we work through our current serious problems.     

FIRST, in our constitutional democracy, governments must protect people from two harms: (1) criminal activity, particularly injury to one's person or property; and (2) discrimination or other abuse based on inherent characteristics, most notably race.  American governments at all levels -- local, state, and federal -- have failed to adequately provide both kinds of protection. 

SECOND, to remedy this problem at its most basic level, each government must properly train and deploy police and other law enforcement officials -- and hold them responsible when they use their positions of authority to violate people's rights to equal treatment and liberty. Such accountability has been lacking, especially in cities where governments have executed agreements with police unions that make it extremely difficult to discipline or remove offending officers.  Derek Chauvin, whose killing of George Floyd ignited the current protests, is merely one example. The lack of accountability for bad cops also tarnishes the reputation of the many officers who courageously work to protect the public. 

THIRD, when government officials abandon their duty of proper law enforcement, the urban poor -- particularly minority communities -- are especially vulnerable. During ordinary times, such government abdication often takes the form of allowing the use of unnecessary, excessive, and sometimes lethal force against African Americans and other groups.  During times of unrest, such abdication means allowing criminal activity -- looting, arson, assault, and murder -- that has a hugely disproportionate impact on minority communities.  History teaches that urban areas victimized by such misconduct recover extremely slowly, if at all.   

FOURTH, governments must respect the constitutional rights of Americans to peacefully assemble and protest, but must also impose reasonable restrictions necessary to protect public health, safety, and welfare.  Therefore, we should carefully distinguish legitimate protesters from those who are engaged in criminal activities.

FIFTH, Americans must continue their efforts to eliminate race discrimination in criminal justice, education, employment, housing, health care, and other areas.  Reasonable people acting in good faith will disagree, however, on the best specific policies to achieve those goals. Therefore, we should work together to consider a variety of approaches, not demonize anyone who disagrees with us.     

Robert Pushaw is James Wilson Endowed Professor of Constitutional Law at Pepperdine University Caruso School of Law. You can reach him by e-mail at robert.pushaw at pepperdine.edu



Posted 3:14 PM by Guest Blogger [link]

The Rhetoric of Bigotry: Hate, Insincerity, and Intolerance

Guest Blogger

For the symposium on Linda McClain, Who's the Bigot?: Learning from Conflicts over Marriage and Civil Rights Law (Oxford University Press, 2020).



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Posted 9:30 AM by Guest Blogger [link]

Media Apocalypse, Episode 3: Rasmus Nielsen

JB

Posted 9:00 AM by JB [link]

Does Senator Graham Realize that (per President Trump and the SG) His Investigation of the Russia Investigation is Unconstitutional?

Marty Lederman

The Senate Judiciary Committee is currently engaged in an investigation entitled "Oversight of the Crossfire Hurricane Investigation."  ("Crossfire Hurricane" was the FBI investigation into Russian interference in the 2016 election.)  On Thursday, the Committee voted 12-10 along party lines to authorize Committee Chair Lindsey Graham to unilaterally issue subpoenas related to this Judiciary Committee "oversight" investigation, including to 53 specifically named current and former officials from the FBI, DOJ and the Intelligence Community:  Trisha Anderson, Brian Auten, James Baker, William Barr, Dana Boente, Jennifer Boone, John Brennan, James Clapper, Kevin Clinesmith, James Comey, Patrick Conlon, Michael Dempsey, Stuart Evans, Tashina Gauhar, Carl Ghattas, Curtis Heide, Kathleen Kavalec, David Laufman, Stephen Laycock, Jacob Lew, Loretta Lynch, Andrew McCabe, Mary McCord, Denis McDonough, Arthur McGlynn, Jonathan Moffa, Sally Moyer, Mike Neufield, Sean Newell, Victoria Nuland, Bruce Ohr, Nellie Ohr, Stephanie L. O’Sullivan, Lisa Page, Joseph Pientka, John Podesta, Samantha Power, E.W. “Bill” Priestap, Sarah Raskin, Steve Ricchetti, Susan Rice, Rod Rosenstein, Gabriel Sanz-Rexach, Nathan Sheets, Elizabeth Sherwood-Randall, Glenn Simpson, Steve Somma, Peter Strzok, Michael Sussman, Adam Szubin, Jonathan Winer, Christopher Wray, and Sally Yates.

According to both President Trump (in his personal capacity) and the Solicitor General of the United States, this Judiciary Committee investigation is unconstitutional, and therefore recipients of the subpoenas need not comply with them.

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Posted 3:26 PM by Marty Lederman [link]

Who’s the Nazi?

Guest Blogger

For the symposium on Linda McClain, Who's the Bigot?: Learning from Conflicts over Marriage and Civil Rights Law (Oxford University Press, 2020).


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Posted 9:30 AM by Guest Blogger [link]

The Law Reviews and Reconstruction: An Overly Optimistic World? (Part II)

Stephen Griffin

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Posted 4:43 PM by Stephen Griffin [link]