Posts

Originalism as Identity

By -
Last Thursday night at a conference at the University of Florida devoted to originalism attended by lawyers, academics, students, federal judges, and the entire Florida Supreme Court, Judge William Pryor, the Chief Judge of the 11th Circuit, gave the keynote address. He told the audience that he had been on the bench for several decades, that he is and always was an originalist, that he had written hundreds if not thousands of decisions, but that he only had to “wrestle with the original meaning of the Constitution in four cases.”  He also said that “inferior” courts such as his are bound by non-originalist Supreme Court cases until the justices change them, and that most of his job in the constitutional arena is to apply Supreme Court precedent. He used the word modest repeatedly to describe the proper mindset for federal judges.  I thought it fascinating that one of the most famously originalist judges in the country, who self-identified that way long before it was cool to do so, sai
Read more

Jeff Bezos Welcomes Our Potential Insect Overlord

By -
Early last week, Professors Neil Buchanan, Laurence Tribe, and I submitted a proposed op-ed to the Washington Post . The Post 's editors accepted the op-ed and originally scheduled it to run last Friday morning but then decided to delay its publication until today, because on Friday it would have competed with too many other op-eds. That struck us as sensible, so we acquiesced in the delay, which would have been fine were it not for  its owner's subsequent craven decision not to endorse a candidate in the presidential election, thereby breaking with a tradition it has almost always followed over the last five decades. Buchanan, Tribe, and I join the chorus of criticism that is rightly raining down on Jeff Bezos for his anticipatory capitulation to the potentially looming dictatorship of Donald Trump. Democracy dies in cowardice. My co-authors and I considered pulling our op-ed but decided not to do so for two main reasons: first, the editors who agreed to run (and provided use
Read more

The Company They Keep

By -
Before Lyndon Johnson nominated him to the Supreme Court, Abe Fortas was Johnson's lawyer and friend. That does not excuse the role that Fortas continued to play as a confidante of Johnson when considerations of judicial ethics and separation of powers ought to have led him to keep the president at arm's length or at least to keep their discussions to matters that did not implicate their respective day jobs. Likewise, Antonin Scalia was friends with Dick Cheney before they became a Supreme Court Justice and Vice President, respectively. Even so, although I agreed that Scalia was not technically required to recuse himself from a case involving the Vice President after a duck-hunting trip they took together, Scalia's behavior and defense thereof were tone-deaf. That said, we can understand  how Fortas wanted to keep up his friendship with Johnson, and Scalia his friendship with Cheney. People who attain power remain people with bonds of friendship that can be painful to seve
Read more

Would a Big Margin of Victory for Harris Matter?

By -
It is now beyond merely the conventional wisdom to say that the stakes in the 2024 election make it important that Kamala Harris not only win but that she win by as many votes as possible.  I am not sure where or when conventional wisdom becomes dogma, but on this matter of shared belief, we clearly passed that point a long time ago.  But is there anything more than repetition and a vague head-nodding kind of instinct to back up that idea? In the old days, the logic was that winning candidates not only needed to eke out a victory but to win a Clear Mandate to Govern.  Even before Trump, however, that gauzy notion had already become more than a bit silly.  Most notably, George W. Bush's backers (including Dick Cheney) insisted that he had a mandate coming out of the 2000 mess.  Having lost the popular vote and been bailed out by the Electoral College and the Supreme Court, Republicans still had the gall to insist that "the American people" had voted for Bush's agenda.
Read more

Avoiding Unilateral Disarmament is not Hypocrisy: Campaign Finance Edition

By -
My latest Verdict column , titled The Past, Present, and Future of Free Speech in America , takes readers on a very brief tour of the history of free speech protection in the U.S. It's a brief tour because prior to the 1960s there wasn't much such protection. Since the 1990s there has been a consensus among legal elites about the necessity of protecting at least a core of free speech, but among the broader public, free speech tends to be invoked selectively--especially (although not exclusively) on the political right. I describe Donald Trump's claims that he was subject to censorship when he was ordered not to threaten witnesses, jurors, court personnel, or their families during his hush-money trial. Such claims are bogus in their own right but especially hypocritical, given all of the ways in which Trump threatens free speech and the free press. For today's essay, I want to discuss another charge of hypocrisy. The most recent episode of the generally excellent NPR sh
Read more

Get Me My Smelling Salts! Apparently, We Are Not Permitted to Call Fascists Fascists

By -
For some reason, people become squeamish about calling out extreme political views (or, more specifically, right-wing political views).  Admirable self-awareness -- "Am I being fair here?" -- becomes a crippling habit of refusing to say that something terrible should be condemned.  When I was coaching a college debate team, the ultimate moment came when one of my students said (sincerely): "Well, what Hitler did could have been right for Hitler ."  There is a gray area between intellectual modesty and depraved moral relativism, but the existence of difficult line-drawing problems cannot mean that we lack the ability or the right to say when things are wrong. This problem is relevant today because of the tendency of too many people to say that it is beyond the pale to accurately describing Donald Trump's encouragement (or at least ex post justification) of political violence as fascistic.  Even beyond his embrace of violence, Trump has revealed himself, over and
Read more

Celebratory History, Reckoning, and Backlash

By -
I spent last week in Portugal, mostly in Lisbon with some side trips. I was struck by the extent to which museums and the like celebrate the age of discovery without much acknowledgment of the impact of colonialism. The Maritime Museum in Belem is a vivid but hardly unique illustration. It is through and through a celebration of Vasco da Gama and other Portuguese explorers of the 15th through 17th centuries. Even more strikingly, it is a celebration of colonialism. Among a great many artifacts, displays, and reproductions, I saw exactly one small wall display acknowledging any role of Portuguese seafarers in the slave trade. And that display downplayed this role, first by noting (correctly) that slavery in Africa pre-dated Portuguese export of enslaved Africans to Europe and the Americas and then by highlighting eventual 19th-century efforts by Portugal to combat the trans-Atlantic slave trade. The treatment of slavery at the Maritime Museum and elsewhere in Portugal reminded me of wh
Read more

Of Originalism and the Emperor's New Clothes

By -
On October 25, I am travelling to an originalism conference at the University of Florida sponsored by the Federalist Society and attended by judges of the Florida federal district courts, the entire Florida supreme court, and several Eleventh Circuit judges, including keynote speaker Judge Bill Pryor, whom I have severely criticized in writing and in public . I am on a panel devoted to originalism on the ground. As the Supreme Court heads towards possible political showdowns in November over the future of the American presidency and maybe America itself, it is important to focus on the amount of harm that judicial lip service to originalism plays in the Roberts Court’s caselaw. Below is a list of points that I intend to flesh out at the conference to demonstrate how originalism is nothing less and nothing more than a cover for the conservative justices’ modern value choices and current political ideologies. Originalism is the Emperor's New Clothes of constitutional interpretation
Read more

Yes, This is the US Media's Political Coverage in 2024: Trump Continues to Channel Nazi Language, but (Gasp!) Walz Caused a "Kerfuffle"

By -
Last weekend, Donald Trump said this (time mark 2:54-3:24): Kamala has imported an army of illegal alien gang members and migrant criminals from the dungeons of the third world ... to prey upon innocent American citizens. ... They're very, very, very sick with highly contagious disease, and they're let into our country to infect our country. .... These people are the most violent people on earth ... and they're bringing drugs, and they're bringing crime, and they're rapists. And that is an edited version that leaves out even more of Trump's choice full-on racist/fascist xenophobia. Reflecting on that outrage, I was initially tempted to write something like this; "Did The New York Times report any of that?  I assume so, but they clearly have not highlighted it."  Because I have limited bandwidth, I lack even the residual strength to look into that simple question.  I am, however, no longer willing even to assume that The Times reported Trump
Read more

Does Title VI Require Private Universities to Restrict Student Speech? (Cross-posted at Knight First Amendment Institute Blog)

By -
[N.B.  The following essay first appeared earlier this month at the blog of the Knight First Amendment Institute at Columbia University . As the institute's executive director Jameel Jaffer explains in an introductory essay , my contribution is one of several to emerge from an all-day gathering of free speech scholars. I encourage readers to check out the other insightful essays in the series .] In one of the first judicial rulings in a lawsuit charging a university with violating Title VI by allowing students (and possibly others on campus) to stage protests of the war in Gaza, Federal District Judge Richard Stearns rejected Harvard’s motion to dismiss the complaint as failing to state a claim. According to Judge Stearns, the plaintiffs’ allegations, if taken as true (as they must be in resolving a motion to dismiss) established that Harvard had been deliberately indifferent to student-on-student antisemitic harassment in violation of its Title VI obligations. In so ruling, Judge
Read more