Posts

Incentivizing Running Up the Score

By -
My latest Verdict column explains why it makes a difference whether Democrats win the Senate races in Alaska and Mississippi, even though the difference between 54, 55, and 56 Senate seats might seem inconsequential, given that 51 would get them a simple majority and any of those numbers is less than the 60 needed to break a filibuster and much less than the 67 needed to overcome a presidential veto. What I have to say also pertains to the importance of having won Michigan and thus undercuts the claim by future Dancing with the Stars performer Haley Stevens that the Democrats could have afforded to lose the Michigan Senate race. As I argue in the column, additional Senate votes matter for the Senate that will convene in January because they provide a cushion against Democratic defections and make it easier to form coalitions with defecting Republicans. Further, each additional Senate seat won in 2026 affects the number of Senators who assemble in January 2029 and January 2031, when o...
Read more

How Should SCOTUS Read one of the Few Provisions of Federal Law that Favors Habeas Petitioners?

By -
Last week, the Supreme Court heard oral argument in  Guerrero v. Johnson . The case involves the proper interpretation of a provision of the Antiterrorism and Effective Death Penalty Act (AEDPA), enacted in 1996, that limits the circumstances under which a person can successfully bring a federal court habeas corpus petition on the ground that their state court conviction or sentence was unconstitutional. This area of the law is maddeningly technical, but I shall try to make it accessible to non-specialists without dumbing it down too much. The relevant statutory provision ( 28 U.S.C. § 2244 ) generally forbids a person in state custody from bringing more than one federal habeas petition. Subsection (b)(2)(A) makes an exception if the petitioner brings a claim that wasn't the subject of a previous habeas petition if "the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable." T...
Read more

Does the Dobbs Leak Investigation Violate Separation of Powers?

By -
Last week, The New York Times reported that the Department of Justice is aggressively investigating the 2022 leak of the Dobbs opinion, with subpoenas being issued to persons who worked at the Supreme Court at the relevant time (presumably including some people who still work there). The article includes the following passage: The Justice Department has the right to investigate any federal crime committed at the court, such as insider trading based on advance knowledge of a case outcome, said Michael C. Dorf, a constitutional law professor at Cornell. But if the leak does not amount to a crime, the investigation could violate the separation of powers that ensures the court’s independence, he said.  That could amount to “the executive branch harassing members of the judicial branch,” he said. Those quotations are accurate, and I stand by them, but they require a bit of elaboration. To begin, I do not see a separation of powers problem with a DOJ investigation of alleged conduct tha...
Read more

Is Legal Realism an Impediment to Judicial Resistance to Authoritarianism? (A Preview of My Upcoming Lecture)

By -
Today and tomorrow I'll be attending the Seventeenth Annual Constitutional Law Colloquium at Florida State University College of Law, where I'm honored to be delivering the keynote address later today. Below I'll briefly preview my lecture, but first I just want to say how much I'm looking forward to attending sessions featuring, among others: my co-blogger Eric Segall; my former students Beau Baumann, Eric Berger, and Caroline Corbin; old friends like Bill Araiza (who clerked across the hall from me at the Ninth Circuit and down the hall at the Supreme Court), Perry Dane (my former Rutgers colleague), Steve Griffin, and Rivi Weill; and numerous others whose work I've long admired (like Jack Balkin). I'm super-grateful to the colloquium co-organizers Barry Sullivan and Alex Tsesis for inviting me. The title of my keynote is  Realism, Formalism, Courage, and Hyperopia: Reflections on the Roberts Court’s Response to Authoritarianism . In a few places it draws on ...
Read more

Predictably, the Democratic Establishment (Including the NYT) is Having None of It

By -
Having indulged in a bit of non-pessimism in yesterday's column , I want to get back to reality today with a serious question. Pop quiz: What do Chuck Schumer and Hakeem Jeffries stand for? Seriously, I wonder how many people reading this column -- or even how many people in the entire world -- could answer that question with any confidence at all.  Could anyone?  These are two of the most prominent people in the US government, men who have made it clear that they will try to retain their top leadership positions in the newly Democratic Party-controlled houses of Congress, but other than being "against Trump" or "for Democrats," has anyone ever heard them say what are they actually in government to accomplish? Beyond the occasional generalities and platitudes ("improving people's lives," "a peaceful world," "restoring decency to the government"), I can honestly say that I never-have-I-ever heard either man even hint at would amo...
Read more

Is This What Non-Pessimism Feels Like?

By -
With headlines like " Democrats Rout G.O.P. ," " Democrats’ historic rout was fueled by massive voter swing to the left ," and " US voters rebuke Trump as Democrats win control of Congress in ‘blue wave’ " filling the news feeds today, surely things are looking up. And they are, kind of.  Before I get back to being an Eeyore, however, please allow me a moment of joy, followed by an explanation of why I am choosing to lead today's column by talking at some length about one particular Senate seat:  Good riddance, Susan Collins! There are obviously bigger stories going on right now, but we also deserve to luxuriate in some smaller pleasures.  And the long-overdue forced departure of the walking affliction whom Jennifer Rubin correctly described as "the disingenuous Trump flunky Sen. Susan Collins" certainly qualifies. In 2009, the economy was reeling from the Global Financial Crisis and informed people were genuinely worried that the US economy...
Read more

Why I Vote in Person on Election Day But Shouldn't Have To

By -
Image
Today is Election Day. If I lived in a state in which elections are conducted primarily by mail , I almost certainly would have mailed in my ballot rather than attempted to vote in person. New York State is not such a state, although I have sometimes sought, received, and returned an absentee ballot. Effective a couple of years ago, New York has both absentee ballots--for which an excuse is required--and "Early mail" voting --for which no excuse is required. For either, one must request a mail-in ballot. Unlike some states, New York does not simply mail every registered voter a mail-in ballot. New York also has early in-person voting. If I lived in a district in which one can expect long lines at the polls, I certainly would have voted early. However, in the 18+ years I've lived in Ithaca, I've never had to wait more than a minute or two to vote at my local polling place (sometimes an elementary school, this year the lobby of a retirement home). And because there are ...
Read more

Faith Based Discrimination is Still Discrimination and the Government Should not be Forced to Subsidize It

By -
St. Mary Catholic Parish ("St. Mary") is a private school in Denver, Colorado that openly discriminates against LGBTQ families. Because St. Mary is a private school, nothing in the Constitution forbids it from admitting whomever it pleases or requiring its students and families to adhere to its religious teachings. And nothing in this blog post should be interpreted by anyone to suggest any justification for coercive governmental intervention into the discriminatory policies of St. Mary or any other private religious school (unless the school accepts public money). But what St. Mary does on its own dime is different from how the government spends taxpayer dollars. Yet tomorrow, St. Mary will argue to the United States Supreme Court that Colorado violated the Free Exercise Clause by excluding it from a state-wide program that provides public money to participating pre-schools. Colorado law requires schools that want the state's money to agree not to discriminate on the bas...
Read more

The Root Causes of the Two Dan Sullivans Problem

By -
Image
Yesterday I was on SiriusXM with Dan Abrams, who has a law and politics podcast, talking about the two Dan Sullivans issue in Alaska and related issues. He was more focused than I would have chosen to be on the possibility of criminal prosecution but it was an otherwise useful conversation. It's now available via YouTube either by clicking this link or watching below.  Meanwhile, I created a little graphic to explain how the problem of same-name candidates emerges, given that it would be simple enough to prevent this sort of thing with a high threshold for ballot access in a two party system. (I "created" the graphic in the sense that I generated all of the steps and the text, but I used Claude to turn it into a graphic.) Here it is: Why Alaska's System Invites Same-Name Candidates Why Alaska's system creates an incentive for same-name candidates A chain of fixes, each solving one problem while opening the door to the next, ending with a tactic...
Read more

Twenty Years On, It's Still About Sentience

By -
Image
Yearly on this blog, Professor Buchanan writes a "Veganniversary" essay, the portmanteau of his own creation marking another year since he became a vegan. His first announcement of adopting a vegan lifestyle was in July 2008 , which was a little less than two years after I became a vegan. I am less able to pinpoint the exact date for me. I do know it was some time in the fall of 2006, meaning that I have recently passed or will soon pass my 20th veganniversary. To mark the occasion, I offer some observations. When people learn how long I've been vegan, they often say that it must be easier now than it was 20 years ago. That's true in one sense they mean and one that they don't. The sense in which they mean the point is that there are many more items in grocery stores and at restaurants (even in some unexpected places) that are and are clearly marked as vegan (or plant-based) now than there were then. Even so, 2006 was pretty far along in the movement. Donald Watso...
Read more