PrawfsBlawg

Draft Paper on the President as an "Officer of the United States"

There is a new draft paper on SSRN with material for those who are interested in this topic.

Saturday Music Post - Rainstorms

Today's music post has songs evoking rain. The clips are at The Faculty Lounge.

Thomas Friedman on Hamas

Thomas Friedman has a long essay in today's New York Times, titled "What Is Happening to Our World." Here is his lengthy discussion of the intentionally disastrous choices made by Hamas:

Among the most ignorant and vile things that have been said about this Gaza war is that Hamas had no choice — that its wars with Israel culminating on Oct. 7 with a murderous rampage, the kidnappings of Israelis as young as 10 months and as old as 86 and the rape of Israeli women could somehow be excused as a justifiable jailbreak by pent-up males.

No.

Let’s go to the videotape: In September 2005, Ariel Sharon completed a unilateral withdrawal of all Israeli forces and settlements from Gaza, which Israel occupied in the 1967 war. In short order, Hamas began attacking the crossing points between Gaza and Israel to show that even if Israel was gone, the resistance movement wasn’t over; these crossing points were a lifeline for commerce and jobs, and Israel eventually reduced the number of crossings from six to two.

Hamas then faced a critical choice: Now that it controlled the Palestinian parliament, it could work within the Oslo Accords and the Paris protocol that governed economic ties between Israel, Gaza and the West Bank — or not.

Hamas chose not to — making a clash between Hamas and Fatah, which supported Oslo, inevitable. In the end, Hamas violently ousted Fatah from Gaza in 2007, killing some of its officials and making clear that it would not abide by the Oslo Accords or the Paris protocol. That led to the first Israeli economic blockade of Gaza — and what would be 22 years of on-and-off Hamas rocket attacks, Israeli checkpoint openings and closings, wars and cease-fires, all culminating on Oct. 7.

These were fateful choices. Once Sharon pulled Israel out of Gaza, Palestinians were left, for the first time ever, with total control over a piece of land. Yes, it was an impoverished slice of sand and coastal seawater, with some agricultural areas. And it was not the ancestral home of most of its residents. But it was theirs to build anything they wanted.

Had Hamas embraced Oslo and chosen to build its own Dubai, not only would the world have lined up to aid and invest in it, it would have been the most powerful springboard conceivable for a Palestinian state in the West Bank, in the heart of the Palestinian ancestral homeland. Palestinians would have proved to themselves, to Israelis and to the world what they could do when they have their own territory.

But Hamas decided instead to make Gaza a springboard for destroying Israel.

Hamas is not simply engaged in some pure-as-the-driven-snow anticolonial struggle against Israel. Only Hamas’s useful idiots on U.S. college campuses would believe that. Hamas is engaged in a raw power struggle with Fatah over who will control Gaza and the West Bank, and it’s engaged in a power struggle in the region — alongside other pro-Muslim Brotherhood parties and regimes (like Turkey and Qatar) — against pro-Western monarchies like Saudi Arabia, Jordan, Kuwait and the U.A.E. and military-led regimes like Egypt’s.

In that struggle, Hamas wanted Gaza isolated and in conflict with Israel because that allowed Hamas to maintain its iron-fisted political and Islamist grip over the strip, foregoing elections and controlling all the smuggling routes in and out, which funded its tunnels and war machine and the lifestyle of its leaders and loyalists — every bit as much as Iran’s Islamic regime today needs its hostility with America to justify its iron grip over Iranian society and the Revolutionary Guard’s control of all of its smuggling.

There is so much to criticize about Israel’s occupation of the West Bank, which I have consistently opposed. But please, spare me the Harvard Yard nonsense that this war is all about the innocent, colonized oppressed and the evil, colonizing oppressors; that Israel alone was responsible for the isolation of Gaza; and that the only choice Hamas had for years was to create an underground “skyline” of tunnels up to 230 feet deep (contra Dubai) and that its only choice on Oct. 7 was martyrdom.

Hamas has never wavered from being more interested in destroying the Jewish state than in building a Palestinian state — because that goal of annihilating Israel is what has enabled Hamas to justify its hold on power indefinitely, even though Gaza has known only economic misery since Hamas seized control.

We do those Palestinians who truly want and deserve a state of their own no favors by pretending otherwise.

He doesn't spare Bibi Netanyahu, nor should he. The entire essay is here.

"Anti-Zionists" Firebomb Synagogues in Montreal

As reported by a columnist in the Toronto Sun:

• A Montreal Jewish school for boys has been shot up twice.
• Another Montreal Jewish school, for children as young as Grade one, has been also hit with bullets.
• A Molotov cocktail was thrown at a Montreal synagogue.
• A Montreal Jewish community centre was firebombed.
• Another Montreal-area Jewish community centre – and another synagogue – were firebombed.
• A Montreal Muslim cleric spoke at an anti-Israel rally and called for God to kill Jews “and spare none of them.”
• Scores of Montreal Jewish businesses have been targeted for boycotts, threats and graffiti — including Nazi swastikas.

The column is here.

The Thomas-Trump Conflict Hiding in Plain Sight

My new essay at The Hill explains the significance of Justice Thomas’s participation in the Supreme Court’s unanimous rejection of Special Prosecutor Jack Smith’s Petition for Certiorari before Judgment. Here is the gist:

The Thomas-Trump conflict hiding in plain sight

Although Special Prosecutor Jack Smith may have suffered only a minor setback when the court rejected his petition to review the immunity issue on an expedited basis, the unanimous ruling revealed a greater problem hiding in plain sight.  

The recent ruling may seem fairly innocuous, with Thomas simply joining a one-sentence order denying Smith’s petition to skip the appellate court, while leaving the ultimate immunity question to be decided another day. However, disqualification provisions apply throughout a proceeding, including the certiorari stage. 

The case for recusal is exceptionally strong by any standard. Virginia Thomas’s deep entanglement in the relevant events would, in the language of the Code of Conduct, surely cause an “unbiased and reasonable person who is aware of all relevant circumstances” to “doubt that the Justice could fairly discharge” his duties. 

By participating at even this early stage of the case, Justice Clarence Thomas indicated that he has no intention of recusing himself in any Trump-related matters — such as the former president’s disqualification from the Colorado Republican primary ballot — notwithstanding a clear conflict of interest due to his wife’s involvement in subverting the 2020 election. 

You can read the entire essay at The Hill.

Of-Campus Politics

In the social media universe, the American Sociological Association has come in for a round of mockery and a certain amount of despair because of its presidential theme for the 2024 annual meeting: "Intersectional Solidarities: Building Communities of Hope, Justice, and Joy." The description reads, in part:

The 2024 theme emphasizes sociology as a form of liberatory praxis: an effort to not only understand structural inequities, but to intervene in socio-political struggles....The 2024 program theme focuses on how we can use our understanding of intersectional inequalities and solidarities to help build a better world. Sociologists in a wide range of settings are motivated by the potential to make a difference. This theme calls on sociologists in all of our roles—as students, teachers, advisors, mentors, leaders, applied researchers, academic researchers inside and outside of sociology departments, community-engaged researchers, and public sociologists—to consider how to use sociology to create more just communities and societies....This theme also reflects the “pleasure turn” in sociology, to consider how sociology can contribute to a positive, transformative vision of society....[S]ociology can contribute to a living world, one where solidarity, healing, and growth exist, building communities of hope, justice, and joy.

And so on, with all the expected invocations of jargon and then some. 

It's true, of course, that academics are accustomed to ignoring presidential themes for annual disciplinary conferences. For example, my schedule for the new year already includes ignoring the presidential theme for the 2024 AALS annual meeting, "Defending Democracy," regardless of whether it's a propos. Nevertheless, I confess that I tend to get slightly queasy when I see exuberant or even dutiful academic uses of the word "praxis." That's true partly because the word has become a popular cliché,* but also because it raises questions about, among other things, the academic role; the proper remit of disciplines and scholarship; ideology and politics; interventions that fall outside of one's real expertise and/or show insufficient regard for unanticipated consequences; and popular and political blowback when academics draw wider attention to their potentially idiosyncratic views.

But a little digging offers a different and more comforting way of looking at things. If one examines the CV and personal website of the ASA president responsible for the praxis-based meeting theme, what does one find? The bulk of that person's articles and "public engagement" involve things like op-eds in the Chronicle of Higher Education and Higher Ed Online, work on "inclusive department climates in STEM fields," and things like studies of "faculty work activity dashboards" and methodical scrutiny of faculty evaluations for signs of "neoliberal logics." I don't mean to mock these topics. That's not all this person works on or has been involved in at the level of "praxis," and in any event issues such as faculty diversity and inclusion are very real and need to be addressed. The fact remains, however, that most of the ASA president's "interventions" appear to take place squarely within the campus gates.  

There is a deeper, fundamental truth about the academy here. It should offer some reassurance to those who worry at all about "praxis" and some deflationary effect to those who enthuse about it. The corollary of the corollary of Sayre's Law still governs faculty conduct, albeit under different guises. Most faculty activism, scholarly or otherwise, is neither on-campus nor off-campus, but of-campus. For all the high-blown talk about changing the world, most "praxis" and "engagement" still amounts to the modern-day equivalent of the age-old activity of arguing about faculty parking spaces.  

* Here's the Google n-gram evidence. (And may I say I'm delighted to see such a revival of interest in Latin and ancient Greek!) In law, a Westlaw search of the law review database found 31 articles using the word "praxis" in 1985, 51 in 1990, and 171 in 2000. The average settled around 170 per year until about 2020, which saw a jump up to 209, followed by 250 in 2021 and 276 in 2022. It's no "centering" (68 articles in 1990, 545 in 2022), but it's up there.  

Iowa Food Fight

Iowa Gov. Kim Reynolds has turned down a federal program that provides food support for children in low-income families, with a $40/month Electronic Benefit Transfer card for each kid when school is out of session (to substitute for free breakfast and lunch programs). She isn’t doing it to be cruel, mind you. She is refusing the food funding – and this isn’t a joke, it’s an actual quote – because “childhood obesity has become an epidemic.” That’s right, Reynolds’s modest proposal is to help children lose weight by, you know, starving them a little.

Okay, that’s a bit of exaggeration. Reynolds doesn’t exactly intend to starve children into ectomorphism. Her announced reasoning is that the summer EBTs place too “few restrictions on food purchases” and therefore do “not have a strong nutrition focus.”

In other words, low-income parents cannot be trusted to provide adequate nutrition to their kids. Although Republicans in Iowa and elsewhere believe strongly in parental control over everything from library books to vaccinations, they draw the line at allowing poor people to feed their own children.

Instead, according to Reynolds, children’s diet must be determined by the Iowa Department of Health and Human Services, which will totally ensure “healthy choices around food and nutrition” in a way that would evidently elude any parents with an extra forty bucks to spend on their kids’ food. The governor's earlier statement -- "I trust Iowans to do the right thing" -- is evidently inoperative when it comes to rations for low-income kids. What parents really need is a menu mandate, full of "nutritionally dense food" approved by the state's HHS department.

Yes, Iowa Republicans are determined to keep the government out of family life, unless it involves dictating meal plans. And they are committed to respecting parental choices, unless the parents happen to be poor. Checkmate, libs.

What is Missing From This Story?

I have in the past written critical as well as positive things here about Clarence Thomas.* And I have written at greater length elsewhere about why we should be leery of the clerkship-as-family approach to clerking, especially when it so frequently turns into the lamentable condition of former-clerk-as-hero-worshipper. So obviously my attention is bound to be drawn to a story titled "Clarence Thomas's Clerks: An 'Extended Family' With Reach and Power." Of course it would be. It was the intention of the story's writers, editors, and graphic artists that the story draw attention. But the story--which has two reporters' bylines, a credit to a third reporter and a researcher, and two people credited for having "produced" it--is striking mostly for what it lacks. With one fairly unexceptional exception, it quotes no "experts." And without exception, it offers no quotes from former clerks for any other past or present Supreme Court Justice. 

In fairness, "expert" quotes in newspaper stories are often worthless, since they frequently are used by the reporter to provide an outside voice for the point they wish to make or viewpoint they wish to share, are used for that reason, and may or may not reflect either the actual expertise of the source or the actual consensus of the field. But given the vast number of former law clerks out there, many of whom are slavishly eager to be of service to the press--even on the record--the absence of quotes from a single one of them is startling. I can't think of similar examples in other "takeout" news features. I don't think it reflects on the universe of former clerks; I think it reflects on the reporting. It's a bizarre absence that surely can't be put down to lack of knowledge or resources on the part of the reporters.

Obviously, what those clerks would have brought as sources to a story on a vast "army" or "network" of "like-minded former clerks" who have become "influential acolytes," occupying positions in "the nation’s law schools, top law firms, the judiciary and the highest reaches of government," is perspective. They might have noted, as the story does not, that six of the nine current justices were Supreme Court clerks and that three of them replaced the justice for whom they clerked. They might have said that most former clerks these days are "like-minded" to their justice and to each other, give or take. They might have said that many of them have sought to advance those like-minded views in a variety of ways, including Supreme Court advocacy, highly paid and otherwise, on the bench, in a variety of influential positions, and also as legal academics.** They could have talked about all their own reunions, gatherings, contacts, and the like. Some of these points are noted in the piece, of course, although generally without examples or illustrations. But actually talking to and quoting former clerks for other justices would have added names, color, and emphasis to those points. Even if they had only trawled the literature of law review tributes to retiring or deceased justices, they would have had no trouble, for example, finding references to the justice's spouse as chief cheerleader, a vital part of the clerk-justice-community, and so on.  

In the end, their presence could have helped the reporters, and readers, in three ways. 1) They could have identified those aspects of the Thomas clerk community and its practices that they think really are unusual, and whether they think any of those aspects are irregular or problematic or corrupt--or are simply what other justices' former clerks do, only more so. I don't suggest they wouldn't have found any unusual and problematic aspects. But the story's nut graf--its version of a law review article's paragraph explaining why the article is important or justified--says only this: "What makes Justice Thomas’s clerks so remarkable, in large part, is their success as loyal standard-bearers of his singular ideology." That is, at best, an "only more so" justification. 2) They could have talked about all the ways in which the aspects of the Thomas clerk community highlighted by the story are not exceptional, how common they are, and whether any other justices' former clerks exceed them in any way--for instance, by occupying more powerful positions. 3) To the extent that other justices' former clerks suggested that at least some of the things highlighted in the story, if not most of them, are common--for instance, former clerks occupying influential positions, or advancing their judge's jurisprudential or political "projects," or spending their careers defending, celebrating, justifying, or practically deifying their former boss--they could have led some readers to wonder either why this story focused on Thomas, or what is wrong and corrupt about this culture as a whole, as a general ecosystem of power rather than as a matter of one particular justice. 

Three reporters, two "producers," one researcher, and 3,431 words. That is epic-novel-length for a newspaper story, and more than the Times generally devotes to a justice, clerk, or former clerk. unless that clerk is marrying a quondam Internet influencer. All that, and just one unexceptional quote from one expert and no quotes from former clerks for other justices. That is just weird, and poor journalism, and a glaring absence.

* One of my posts talked about the complications involved in the modern norm of Supreme Court justices with successful spouses who are active in law or politics, a norm that reflects a larger world of two-career spouses in Washington and elsewhere. It did not suggest that such situations are de facto unethical. It did not quarrel with the extremely abstract and thus almost entirely unhelpful proposition that a justice's spouse has a "right" to "be active in politics," any more than I would say that the President's spouse does not have the "right" to be the chief lobbyist for a major corporation or the "right" to be president pro tem of the Senate. But it suggested that some such situations surely raise broader moral or ethical questions; that in some such situations questions of honor are involved; and that if a justice or other office-holder decided that their spouse's interests should come before their own, it would not be dishonorable or evidence of corruption for that office-holder to give up the office. To the contrary, it might be the honorable thing to do, just as it might be honorable for the spouse to give up his or her desire to be active in politics, for the sake of the honor of the office-holder spouse. I don't see what "rights" have to do with it. Talking about rights is simply a distraction. It doesn't tell you what you ought to do as an honorable person. (In my view, it is not honorable for a judge to decide that he or she is going to stay on the bench for decades and quite possibly until death, although that seems to be a common modern practice. But that's a question for another day.) 

By the same token, it is equally a distraction to talk about whether a justice has a "right" to "accept gifts from wealthy friends." And it is a distortion to suggest that a justice has somehow earned such a right because he or she is underpaid or "incorruptible." This gets things exactly backwards. An office-holder does not gain the "right" to accept gifts from wealthy friends because he or she is incorruptible. Rather, a justice is incorruptible because he or she does things like refuse to accept gifts from wealthy friends, regardless of whether he or she has the "right" to do so.

** The story notes that a "cluster" of former Thomas clerks has ended up at two schools that are described as "centers of conservative scholarship:" George Mason and Notre Dame. It does not say why, other than the enviable talent-spotting and opportunity-grabbing skills of those two schools, that might be. The general suggestion in the story seems to be that this is a project of the schools and/or the clerks, and not a problem with other law schools.   

  

Saturday Music Post - What Do These Songs (Still) Have in Common?

Today's music post raises an annual -- or is it evergreen? -- question about a set of seasonally familiar songs (with one exception). The clips are at The Faculty Lounge.

Note: Link to TFL is fixed.

Statutory Interpretation in the 2020s

My comment with Nora Donnelly is now out in the Southern California Law Review Postscript.  You can download the final version here.  The research in it served as the basis for an awkwardly-timed Guest Essay in the New York Times here.

 

Happy new year to all.

 

 

What Getting "On the Wall" is and Isn't

At the Volokh Conspiracy, Josh Blackman asserts, citing media mentions, that the arguments he and Seth Tillman have made about whether the President is an officer of the United States, especially for purposes of section 3 of the Fourteenth Amendment, have moved from "off the wall" to "on the wall," to use a formulation made popular in legal academic-ish circles by Jack Balkin. I think he's basically right. That is not to say they are completely on the wall in Balkin's sense of being adopted by the Supreme Court or by many other courts, although individual judges may sometimes turn to whatever is handy to justify a result. But they have arguably moved into the realm of contestability--into the realm of arguments that must be addressed rather than being capable of being ignored or dismissed with a couple of casual words. Their arguments are moving wallward, at least.   

It is perhaps worth noting--and Blackman does not suggest otherwise in his post--that saying an argument has moved "on the wall" is basically descriptive, not normative. It tells us whether the argument is on or off the map of acceptably plausible argument, not whether it is "right." Calling an argument "on-the-wall" may be somewhat more normative if one believes that if the courts ultimately adopt an argument--and that is not the present status of the not-an-officer argument--then we should believe the argument is sound and true and right. Although many people believe that an argument is "the law" if it meets this condition, I don't know of anyone who goes the extra fifty miles and believes an argument is good and true in some deeper sense simply because courts adopt it. Balkin has also argued in the context of these discussions that when it comes to constitutional arguments, "the meaning of the Constitution is [not] infinitely distensible." That would suggest that an argument must be non-frivolous to move "on the wall." But although the Constitution is not infinitely distensible, it is, especially when combined with various methods of interpretation and additional sources, pretty damn distensible. In less vulgar fashion, Balkin observes that "sometimes it is very hard to tell what the boundaries of frivolous legal argument and nonfrivolous legal argument are."

Nor, as Balkin argues, does the acceptance of an argument as "on-the-wall" tell us much about its fidelity to the Constitution, except in the sense of fidelity as an "activity" or "process" rather than in the sense of sticking loyally and accurately to an original source in some trans-historical way. A lawyer or academic trying to place an "off-the-wall" argument on the wall may talk in terms of fidelity, but that is "simply the way the game of constitutional interpretation is played." Again quoting Balkin, "Fidelity to our Constitution is manufactured" by "making claims in the name of the Constitution"--and doing things, inside and perhaps especially outside of court, to help them stick. That an argument has been moved in this fashion into the realm of "it might stick" doesn't tell us much about its soundness in some idealized moral, normative, or, if such a thing were to exist, non-social interpretive realm. (As Prof. Josh Blackman once wrote, that conclusion may be "quite ironic" to judicial or political conservatives, "in light of how critical [they] have been for decades about the Justices reacting to political and social movements instead of focusing solely on the Constitution." One should avoid crowing about this point, or applying it to "conservatives" with a broad brush. Not all conservatives are conservative, any more than all progressives are progressive. Some conservatives, like other political groups, are living constitutionalists at best, and perhaps more often have little interest at all in "law" in its storybook sense as a purely internal activity, seeing it instead as a fundamentally political project. Also, and more important to me, we all find ourselves in ironies and hypocrisies of our own.)  

In sum, to say an argument has been moved "on the wall" speaks to its status in legal and perhaps popular discourse, and to whether it is now a potential part of conversation in more or less acceptable circles, or whether it is still confined to asylums and Reddit boards. It does not speak to its soundness, rightness, goodness, accuracy, prudence, or wisdom.

I don't mean this as a judgment of whether any of these labels apply to Blackman and Tillman's arguments. Indeed, my point is that I can't say whether any of these labels apply to those arguments--or at least not on the basis of their metaphorical location in geometrical space. As Prof. Josh Blackman once wrote, focusing specifically on the Supreme Court (a focus that made sense in that context, but I would generally open the lens wider), "The notion of 'off-the-wall' [or 'on-the-wall'] is descriptive of the current acceptance of an argument by the Supreme Court, not its soundness or its normative appeal." When Balkin wrote of the journey of an argument "from crazy to plausible," "crazy" and "plausible" simply meant how they are viewed by "most legal professionals and academics," not how "good," in various senses, the argument is. And the corollary of this formulation is that an argument may move back from plausible to crazy if it is rejected by the relevant authorities--although this will still be a matter of its ultimate acceptance or rejection, not its ultimate rightness or wrongness. One story of this Term, I suspect, will be the Court moving a number of the arguments of Fifth Circuit judges back from "plausible" to "crazy," telling those judges who are attempting to push the Court in a particular direction at a particular speed that sometimes their "bat signal" is simply batty and they need to knock it off. Even then, it won't make those rejected arguments "wrong" in a moral or normative sense, although it may suggest that those judges have sometimes strayed into a non-judicial line of activity that might more properly be pursued elsewhere than on the bench.

I would add another observation. Although the process of moving a legal argument to "on-the-wall" status is generally treated as a product of multivarious actors and social movements, Neil Siegel has observed that "constitutional change" is "driven not just by political actors, but also by legal elites." And Balkin has written:

Arguments move from off the wall to on the wall because people and institutions are willing to put their reputations on the line and state that an argument formerly thought beyond the pale is not crazy at all, but is actually a pretty good legal argument. Moreover, it matters greatly who vouches for the argument -- whether they are well-respected, powerful and influential, and how they are situated in institutions with professional authority or in institutions like politics or the media that shape public opinion.

Without suggesting that I am being faithful to Balkin and others' arguments about how social movements drive constitutional change, one might say that some cases in which arguments are moved on the wall have a lot to do with the role of well-respected and influential individuals, while in other cases the change has less to do with such individuals and more to do political movements, parties, and media organizations, whether they are (or deserve to be) respected or not. It seems to me that an example of the former case is the set of arguments about section 3 of the Fourteenth Amendment that actually won in the Colorado Supreme Court, and which were advanced by Will Baude and Michael Stokes Paulsen. It matters greatly that others, including non-legal elites and other groups, got behind it. But the high regard in which Baude and Paulsen are held as scholars has had a major impact. The incomplete but ongoing wallward journey of the contrary set of arguments seems to me more an example of the latter case. It has moved closer to on-the-wall status in conservative media and social-movement spaces than in court. If it moves further still in legal spaces, I think its being pushed by media and movement organizations will have more to do with it than any initiating actions by "well-respected and influential individuals."

I should be clear again that my observation is descriptive, not normative. It is about the status of an argument, not its rightness in some ideal or purely intellectual sense outside of political and legal change on the ground. Baude and Paulsen are well-respected and influential, but that does not, as they would agree, make their argument "right" in that sense. (In fact, for prudential and other reasons I think their argument should be rejected, although not because the President is not an "Officer of the United States." But that is hardly a pure intellectual judgment.) Nor am I rendering a judgment about either the "rightness" of Blackman and Tillman's argument nor the status of Blackman and Tillman, let alone Kurt Lash, as scholars. Lash is clearly and deservedly well-respected. I also find Tillman an interesting scholar whose energy and monkish dedication have been evident throughout his career. ("Monkish," for me, is high praise.) And I regularly read Blackman's blog posts. But I think movements and media, respected or otherwise, have been the prime movers in the struggle for recognition of that side of the argument about section 3.       

Shifting narratives on antisemitism

I watched the HBO documentary No Accident, chronicling the civil conspiracy trial against Jason Kessler, Richard Spencer, and other organizers of "Unite the Right"  in Charlottesville. The jury found the individuals and groups liable for civil conspiracy under Virginia law but hung on civil conspiracy under federal law; the court reduced an award of (mostly punitive) damages of more than $ 24 million to about $ 2.35 million, given Virginia-law limits on punitive damages. I am considering holding a "Civil Litigation Night at the Movies" next semester, given how the case touches on every class I teach--Civ Pro (lots of stuff about discovery), Evidence (a detailed look at trial and how lawyers prove facts), and Civil Rights (the case began with a focus on a provision of the KKK Act of 1871, although that is not where things landed).

The film highlights some Jewish themes--Roberta Kaplan's Passover Seder, an information session at a New York City temple, discussions (in 2019) of increases in antisemitism, explanations of  "white replacement theory" and Jews' roles in that. But I was struck by how outdated those discussions of antisemitism felt and how much the conversation around antisemitism has changed in the past two months. Now  Republican such as Elise Stefanik are calling out antisemitism in the mainstream media, while making common cause with the villains in this movie. I do not mean to oversimplify--left-wing antisemitism existed in 2017 (e.g., efforts to exclude Jewish organizations from the Women's March and Gay Pride programs) and right-wing antisemitism has not disappeared. But the narrative changed very quickly. Or it vindicates Tom Lehrer.

The Times, Dobbs, and SB8

The New York Times had a big piece Friday on the behind-the-scenes events leading to Dobbs. I want to comment on SB8's cameo in the story.

The piece describes the SB8 case as the beginning of the fall of Roe and the failure to stay enforcement before the law took effect as the point at which "Roe was partially undone." I saw one surprising bit in this section--that Justice Gorsuch was incommunicado except through Justice Alito on the evening of August 31 (the law took effect at midnight September 1). He expressed no view until the next day (which Alito relayed to the rest of the Justices), then voted to deny any injunction the following day. Beyond that weirdness, everything the Justices said in internal memos (as quoted in the Times) appeared in the opinions in the stay order--Roberts' view that the existence of the law might create an independent violation and Justice Sotomayor's view that it was a "pity that we cannot do the right thing."

The problem with giving SB8 a meaningful role in the drama leading to Dobbs is that the outcome of the case should have been obvious. The Court had never said the mere existence of the law violates the Constitution independent of enforcement. The Court cannot stop the law from taking effect, because the Court cannot enjoin a law, independent of its enforcement. And the Court could not, in a § 1983/EpY action, enjoin unknown private actors from doing anything. All of this should have been obvious when the private case reached the Court.

The Ethics of Dog Waste Removal

I ran into a friend today who was walking his dog down my street. As it started to rain, I remembered this essay I wrote for the Chicago Tribune in 1998, about the ethics question I once confronted -- yes, an ethics question -- about dog shit removal.

CHICAGO TRIBUNE

 

May 18, 1998

 

LOST AND FOUND: WHERE, OH WHERE HAS MASHA'S EVENING OBJECTIVE GONE?

 

Steven Lubet

 

This is a tale of suspense and intrigue, exploring the depths of a moral quagmire worthy of a White House scandal. Naturally, it begins on a dark and stormy night, with the wind pitched at a scathing scream and the rain falling with primeval force. It was unmistakably a time for philosophy, for poetry, for faith.

 

It was, in short, time to walk the dog.

 

Clipping the leash onto Masha's collar, I headed into the fateful downpour. At first, fortune seemed kind. We had scarcely gotten to the corner park when Masha stopped, focused, and accomplished our evening's objective. Was it my imagination or did she smile contentedly, as though to say "I've done my part, you do yours." No matter, I had only to clean up the mess and dispose of it before I could return to the indulgent pleasure of a warm house and dry clothes.

 

I reached into the pocket of my jacket. And then--disaster! My pulse froze, my knees buckled. There I stood with no plastic bag. What rash impulse had led me to leave home so sorrowfully undersupplied? What wrathful god had I defied?

 

I could only look helplessly at the unredeemable object of my civic duty. Distressing as it seemed, there was no alternative. (No, not that! How could you even think of such a thing?) I had to mark the spot and return home for a Baggie and a waterproof flashlight. Quickly, I located a small fallen branch and stuck it into the soggy earth next to the even soggier deposit.

 

We were back at the house in record time. I grabbed what I needed and returned to the park, only to discover one last unmerciful turn of events. The muddy branch I'd chosen as my signpost was invisible against the murky night. Rain coursing from my frozen face, I scanned the dim vista in search of my indiscernible stick and the accumulation that it marked.

 

Though there could be nothing more distinctly physical than the task at hand, I soon found myself in a metaphysical quandary. While I could not find Masha's own output, I quickly realized that the park held no shortage of reasonable equivalents. Perhaps they'd been dropped by free-range canines, or perhaps they were abandoned by rogue dog owners. Whatever the source, the existential question slapped me hard across the face.

 

Could I discharge my urban obligation by cleaning up after someone else's mutt? Did I have to remove the precise problem that Masha herself had produced, or was it sufficient simply to reduce the total nuisance level of the park? Surely no one would care about the identity of the dog, so long as I left some corner of the field more sanitary than I'd found it. Nobody was watching, so who would ever know?

 

It was with that stark rationalization that my ethical hard drive began to crash. Excuse followed excuse as I plunged into the abyss of moral relativism, ready to walk away from the righteous (if somewhat soiled) path.

 

If I could fulfill my duty by proxy, why bother doing it in the rain? Wouldn't it be just as good to wait until morning, to clean up in the dry daylight? And having displaced both object and time, couldn't I substitute locations as well? Why not just remove some errant dog's memento from my own front yard? That would, after all, still make the world a cleaner place. And indeed, hadn't I done just that very thing several times the previous week? Why, I had no reason at all to stand in that storm scouting for solid waste! Hey, I was already at least a half dozen scoops ahead of the game. I was entitled to forget about plastic bags whenever I chose, just to get even with all those thoughtless dog-dirt dodgers.

 

I was only moments from heading home empty-handed, a few scant seconds from embracing the evil, seductive logic--and then I was saved. My flashlight, as though guided by an unseen force, swept one last time across the terrain. What was that slight shadow, that small interruption of the beam? Why, it was the very limb I'd stuck into the ground. I strode (carefully) to Masha's spot to complete my appointed work. I cleared the ground--as well as my conscience--and returned home to pooch and family, chastened by my brush with irresponsibility.

 

But what was it that delivered me from a life of crime? Did my communal ideals triumph over base inclination? Did providence intervene? Or was it merely fear--did I foresee myself as the fugitive prey of some hounding Inspector Javert, never to find peace? I only know that in that last bleak moment, torn between right and wrong, the grim visage of Kenneth Starr flashed before my eyes. And then I had no choice. (You never know when you're being taped.)

 

 

Supreme Court Decision Announcements

The most interesting part of the NYT article on Dobbs was the news that the Justices considered ending the practice of handing down decisions from the bench. This oral practice was suspended during the pandemic, so it's only natural that they thought about doing away with the tradition entirely.

I have two (mild) reasons for thinking that the tradition is still a good one. The first is the one emphasized in the article. Dissenters (and concurring Justices) want to voice their views on special occasions. They can do that in writing, of course, but there is something to the idea that the press gives extra coverage to an oral statement by a Justice in case. And maybe that act says something to their colleagues.

The other reason is a little grim. Requiring oral announcements of opinion does serve as a capacity check on the Justices. When Justice Stevens issued his dissent in Citizens United, he had a hard time getting some of the words out. This apparently helped convince him that it was time to retire. Oral argument doesn't serve a similar function, because a Justice need not say anything.

The principal downside to oral decisions is that a Justice can say something that's not in the written opinion, which is confusing. This has happened many times in the past, but I'm hard pressed to think of an example where that caused a significant problem.

 

Saturday Music Post - "Can't Take My Eyes Off You"

"Can't Take My Eyes off You" was Frankie Valli's first big solo hit, in 1967, although he also continued to perform and record with various iterations of the Four Seasons. It was written by Valli's long time bandmate Bob Gaudio and Bob Crewe, who had collaborated on most of the Four Seasons' big hits.

The clips are at The Faculty Lounge.

Favorable termination and miscarriages of justice

Case out of the Fifth Circuit, written by Judge Willett, on Heck v. Humphrey and the so-called Heck bar or habeas exception to § 1983:

A former county ADA in Texas moonlighted for two decades as law clerk to the judges of that district. He was discovered in 2019 and disbarred. Erma Wilson was convicted of cocaine possession in 2001 and received an 8-year suspended sentence. Wilson learned about the conflict when a capital conviction was overturned on habeas (she was not among the many people who received written notice from the DA about the conflict) and brought a § 1983 action, more than two decades after her conviction and more than a decade after completing her sentence.

Heck precludes § 1983 damages actions that would functionally call into question the validity of a conviction or sentence; habeas provides the sole federal vehicle for challenging state convictions. A § 1983 plaintiff must show "favorable termination" as an element of her claim. The problem arises when, as in Wilson, an individual no longer is in custody and thus cannot challenge the conviction or sentence through habeas. The Heck majority adopted favorable termination as an absolute rule. Justice Souter concurred in the judgment to argue that favorable termination should apply only at the "intersection" of habeas and § 1983, where both vehicles might be available; it should not apply when habeas is unavailable because the plaintiff no longer is in custody. Souter illustrates with a hypo that basically matches this case--a procedurally compromised conviction where the person does not learn about the compromise until after his release from custody. In Spencer v. Kemna, five Justices in three separate opinions adopted that position. This precipitated a circuit split--five circuits, including the Fifth, hold that Heck always applies; six allow for some exceptions; the answer depends on whether lower courts can count noses to find binding precedent or whether SCOTUS creates binding precedent only through a single majority opinion. Because the Fifth Circuit requires favorable termination, Wilson's claim was Heck-barred.

Judge Willett was outraged. He described the conduct and the outcome as "utterly bonkers," "difficult to explain," "hard to take in," and "underscor[ing] that the American legal system regularly leaves constitutional wrongs unrighted." He footnotes the last with references to prosecutorial immunity, Monell, and qualified immunity, stating "Upshot: Many Americans’ rights are violated but not vindicated."

Two questions of interest going forward:

1) What happens next. Willett emphasizes that the en banc court or SCOTUS could overrule its precedent on this point. Which avenue will and should the plaintiff pursue?  En banc Fifth Circuit review (and overruling) allows Wilson to avoid Heck and pursue her claim. But it does not resolve the broader circuit split; even if the Fifth Circuit changes its position, five other circuits continue to deny relief to plaintiffs in Wilson's shoes.* Much depends on what Wilson and/or her attorneys want to achieve--a remedy for her in this case or a broader change in the law. I guess this case may offer an interesting example of the occasional gap between cause lawyering and individual representation.

[*] The Seventh Circuit went the other way--it moved to the  "Heck applies" position in 2020 after years of allowing plaintiffs to avoid Heck where they diligently pursued the federal issues diligently and lost the opportunity to pursue habeas through no fault of their own.

2) Wilson's Other Options. The court fails to mention that Wilson had other options or whether she attempted to take advantage of them. Heck lists several ways to obtain favorable termination, including where the conviction has been "expunged by executive order, [or] declared invalid by a state tribunal authorized to make such determination." Lower courts have held the former to include pardons and executive clemency, at least where the pardon makes clear the basis and why it reflects favorable termination. Did Wilson seek a pardon? Alternatively, did she ask the state trial court to vacate the conviction? Neither the complaint, magistrate report, district court opinion, or Fifth Circuit opinion say so. Either would provide the needed favorable termination, mooting the question in this case of when favorable termination applies.

From the standpoint of § 1983's history, those options are unacceptable because they require plaintiffs to rely on state-law processes, whereas § 1983 reflects congressional distrust of state courts and state institutions; Souter makes this point in his Heck concurrence. At least in this case, however, I would expect even Greg Abbott to be receptive to a pardon; the optics and politics seem obvious.

3d Annual "Law v. Antisemitism" Conference (February 25-26 2024)

The event web site and registration page is live.

JOTWELL: Smith on Ahdout on the Court's role in separation of powers

The new Courts law essay comes from Fred O. Smith, Jr. (Emory), reviewing Z. Payvand Ahdout, Separation-of-Powers Avoidance, 132 Yale L.J. 2360 (2023), considering how the Court's role as a participant in separation-of-powers disputes affects the doctrine.

The House of Representatives is in Camp Two

The House on Wednesday passed a non-binding resolution condemning the rise of antisemitism on campuses and condemning Gay, Kornbluth, and Magill for failing "to clearly state that calls for the genocide of Jews constitute harassment and violate their institutions' codes of conduct." It includes the finding that "acts of hate, intimidation, discrimination, and violence-based on ethnicity or religion have no place in our country or in the global community." (Sounds pretty woke for a Republican-drafted proposition). One hundred twenty-five Democrats and one Republican voted against. Recall the old saying about anything that passes with bipartisan support.

The resolution reflects the Camp Two position--antisemitic speech (at least "genocidal" antisemitic speech, whatever that means and however one can tell) is never protected on college campuses. This position belies Stefanik's WSJ op-ed (unpaywalled) centering her criticism on the inconsistent treatment. But that was never her real point, as suggested in her actual questions and the way the rest of the hearing veered into standard conservative attacks on higher ed. This position also presents problems for Camp Three folks who share Camp One's free-speech commitments; as Popehat warned, bad things happen when you support Stefanik's bad-faith efforts at anything.

I have criticized FIRE a lot for its reaction to this dust-up and other stuff. But its (ultimately unsuccessful) statement urging the House to reject the resolution nails the point:

Condemning Presidents Magill, Gay, and Kornbluth for standing for free expression sends exactly the wrong message. FIRE knows all too well that colleges and universities — including Harvard, Penn, and MIT — have a checkered history in defending free expression. But instead of citing past hypocrisy to demand more censorship, Congress should hold these institutions to their newly found free speech promises.

FIRE also hits an additional important point:  "In fact, both sides of the Israel-Gaza conflict have accused each other of genocide." Too many people, especially Jewish groups urging universities to crack down on antisemitism, have ignored this point. If anything arguably reflecting a call for genocide is unprotected, then universities must target and sanction anti-Israel speech ("River to the Sea") and pro-Israel speech ("Stop Hamas"). As ever, empowering the government to censor eventually comes around to speech you like or requires government to draw impossible lines.

A Perfectly Fitting Shoe

The most interesting and enjoyable aspect of this story is not the fact of Bronx Defenders being "roiled" by political controversy and intramural viciousness. In this case it's over the Israel-Hamas conflict, but Bronx Defenders is always roiling. That element of the story has been well covered by others, notably criminal defense attorney Scott Greenfield and his blog Simple Justice, for some time. He comments on the latest story here.

Nor, although it's relevant to current controversies and embraces far more than the Gaza story, is the most interesting aspect the broader lesson we might take from it: Institutions with a particular and important goal--such as public defenders' offices but also newspapers, universities, etc.--fare badly when they decide that having one goal is less important than having every goal. That is surely true. When institutions with a particular function and skill decide that the necessary corollary of "everything is connected" is "we should do everything, not just that one thing that we do," they not only fail to do "everything," but also start doing the "one thing" worse. They lose public trust and respect; they potentially harm current clients (the story notes examples of opposing attorneys refusing to treat with Bronx Defenders PDs); they alienate current members of the institution and potential allies; they threaten the institution's continuity and even its existence (the current controversy has put the organization's continued funding at stake; see also "universities, funding and public support of"); and the whole problem accelerates and metastasizes through self-replication (see also "hiring, faculty"). As with last week's events, one doesn't want to draw the wrong moral from the story. It's neither that statements by Bronx Defenders or its union were wrong because they were "hateful" or "unacceptable," nor that the organization shouldn't be "silenced" by the "powerful." It's that institutions should focus on doing what they're good at and avoid "doing someone else’s job and probably doing it badly." 

No, the most interesting and enjoyable aspect of the story is what it reveals in the first three paragraphs: that members of the office were outraged by being forced to sit through a mandatory sensitivity training session.  

 

Back When Presidents Sweated the Details

Veto Message of President Cleveland (June 23, 1886)

I return without approval House bill No. 7401, entitled "An act granting a pension to Samuel Miller."

This man was discharged from one enlistment June 16, 1864, and enlisted again in August of that year. He was finally discharged July 1, 1865.

In 1880 he filed an application for a pension, alleging that in May, 1862, he contracted in the service "kidney disease and weakness of the back."

A board of surgeons in 1881 reported that they failed to "discover any evidence of disease of kidneys."

It will be observed that since the date when it is claimed his disabilities visited him Mr. Miller not only served out his first term of enlistment, but reenlisted, and necessarily must have passed a medical examination.

I am entirely satisfied with the rejection of this claim by the Pension Bureau.

"Campus Antisemitism Is Making Free Speech Fashionable Again"

Here are some excerpts from an informative article in Psychology Today by Pamela Paresky:

For years, free speech advocates have complained about “safetyism” on campus—shielding students from discomfort at the expense of freedom of expression. Now that the speech is painful to Jews—history’s most convenient scapegoats—university administrators are declaring their commitment to freedom of speech.

What counts as a microaggression? According to the material linked on Harvard’s website, asking an ethnically Asian person “where are you from” communicates “you are not American.” Saying “I believe the most qualified person should get the job” gives the message that “people of color are given extra unfair benefits because of their race.” And a university’s buildings being named for “white, heterosexual upper-class males” is an “environmental microaggression” that communicates to students of color “you don’t belong.”

Celebrating the rape, torture, kidnapping, murder, and beheadings of Jews is not on the list of offensive microaggressions. There is no training that explains why it gives the message “you don’t matter.” And none of the three university presidents who testified before Congress could cogently articulate the circumstances under which calling for the genocide of Jews would violate their code of conduct.

In order to avoid the selective enforcement of campus policies, administrations have two options: They can censor speech Jewish students find hateful the way they censor all the other forms of speech considered hateful by various identity groups. Or they can stick to policies that protect speech and punish harassment, threats, intimidation, and the creation of a hostile environment.

It would be a mistake for universities to enact speech codes designed to censor antisemitic speech. They can address antisemitic harassment, bullying, and discrimination by following existing rules and clarifying definitions. Doing that, however, requires dismantling the poisonous ideology that silences disfavored speech, keeps antisemitism in place, and blinds people to the antisemitism in which they participate. Only then can free speech campus climates flourish.

Paresky is Senior Fellow at the Network Contagion Research Institute (NCRI) and Director of the Aspen Center for Human Development (ACHD), and a former Senior Scholar at FIRE.

The entire article, not paywalled, is here.

 

Ed Yong on Long Covid and ME/CFS

Ed Yong has been one of the most important journalists covering long covid and ME/CFS, beginning in 2021 when many psychiatrists were still claiming that both illnesses were manifestations of depression. His new essay in the New York Times is a must read for anyone interested in the sociology of disease. Here is an excerpt:

Covering long Covid solidified my view that science is not the objective, neutral force it is often misconstrued as. It is instead a human endeavor, relentlessly buffeted by our culture, values and politics. As energy-depleting illnesses that disproportionately affect women, long Covid and M.E./C.F.S. are easily belittled by a sexist society that trivializes women’s pain, and a capitalist one that values people according to their productivity.

Like the pandemic writ large, long Covid is not just a health problem. It is a social one, and must also be understood as such.

Dismissal and gaslighting — you’re just depressed; it’s in your head — are among the worst aspects of long Covid, and can be as crushing as the physical suffering. They’re hard to fight because the symptoms can be so beyond the realm of everyday experience as to seem unbelievable, and because those same symptoms can sap energy and occlude mental acuity. 

Many long-haulers have told me that they’ve used my work to finally get through to skeptical loved ones, employers and doctors — a use that, naïvely, I hadn’t previously considered.

The entire essay is here, paywalled but most law school libraries probably have subscriptions.

Readers of The Faculty Lounge may recall that I have written much the same, beginning in 2015. Here is an excerpt:

I have not spoken much about ME/CFS, even to close friends, because it has been very hard to bring myself just to say the word “fatigue,” which is a trivializing and demeaning description of the illness. People with ME/CFS are not tired or worn out in any ordinary sense; rather we are neurologically disabled.

Almost every other ME/CFS sufferer has at one time or another been referred to a psychiatrist, after being told dismissively that “there is nothing physically wrong with you.”

Too many employers, insurance carriers, schools, and physicians have failed to recognize the crippling nature of this disease – because “everyone gets fatigued” – and that is not going to change unless we are willing to acknowledge and talk about it openly.

Sometimes, sick people need respect more than anything else.

If you have the stomach to read about some of the medical dismissiveness of long covid, you can begin here.

Comments are open.

Rules Enforcement v. Rules Advisement

Here is a good one for the next edition of Berman and Friedman's The Jurisprudence of Sport:

The Kansas City Chiefs had nullified what might have been a game-winning touchdown on pretty great catch-run-and-lateral because a Chief receiver (the guy who scored the TD) lined-up offsides. (Photo and video in the linked story). Chiefs Coach Andy Reid and quarterback Patrick Mahomes were irate about the call after the game (this followed a loss last week in which a non-call on pass interference cost the Chiefs a meaningful chance to tie the game in the closing seconds). The outrage surprised me because (check the photo) the illegal formation is so blatant and obvious. And the official threw the flag as the play began, so he could not have known what would follow or what he was taking away. It could be a let-'em-play situation--under 2:00 in a 3-point game between potential Super Bowl contenders. But I never thought of offsides as a ticky-tack call akin to a foot fault or three-second violation on which refs swallow their whistles. (Compare that with, going back to the Chiefs, refs not calling PI on a hail Mary at the end of last week's game). Maybe offensive offsides (where the players gains a few inches down the field) is different from a defensive player jumping the snap.

It turns out Reid and Mahomes had a different complaint: The officials failed to follow their ordinary practice of advising offensive players, especially receivers, when they line-up offsides and giving an opportunity to correct. The ref explained that the receiver never looked to the official on the sideline for advice and that he was so far over the line that he blocked the view of the ball. The official was helpless--a blatant infraction and no opportunity to follow the soft practice and correct it; the practice does not include the official identifying the problem for the player.

These sorts of "warning" systems offer an interesting insight into how sports rules operate, especially with how officials avoid what are proceed as ticky-tack violations and ensure the players "decide the game." We can distinguish two types of "warning" systems. This one works on request--the player looks to the official for a preliminary ruling to ensure compliance before the official can make a formal call, but the official is not expected to warn the player sua sponte. For others, the ref is in constant communication with the player, without awaiting that request. For example, NBA refs constantly talk to players jockeying in the post about the 3-second violation, warning them to step out of the line when it gets close (which is really at 5 seconds rather than 3). Batters and umpires did a similar dance for years over delays in getting into the box, with the umpire reminding the player about speeding it up when necessary; MLB switched to a formal clock in 2023 when that informal warning system proved ineffective at furthering the policy of moving the game along. It might be interesting to explore which practices develop for which rules and why. The latter cannot work with the offsides call at issue in the Chiefs game--a football field is too large and too loud.

I am trying to think of legal-system analogues to this sort of pre-ruling advice. One is how judges (sometimes) treat pro se civil litigants, advising them on how to proceed and how to correct pleading defects. Another is the informality of discovery, where some judges encourage informal communications between chambers and lawyers and how discovery should proceed, especially when disputes or deadlines arise. And we see that distinction at work--the judge reaches out to help pro se litigants, while the judge still waits for parties to reach out on discovery issues, even if the judge will resolve them without a formal ruling.

Pressuring university presidents

The Times and Michael Dorf consider some of the faculty-governance issues circling the attacks that resulted in Liz Magill's resignation and the targeting of Claudine Gay at Harvard. (Sally Kornbluth has university support, for now). Dorf emphasizes the correctness (if insensitivity) of their answers to the actual questions asked, as well as the bad-faith politics and ideological goals underlying the hearing, Stefanik's questions, and the subsequent attacks.

I will add one other question to the mix: To what extent does gender play a role here? The presidents at the center of the storm are women. Dorf mentions three schools--Columbia, Cornell, and NYU--that have dealt with antisemitic incidents; all have women presidents. This was not the dynamic at the hearing, where women served as chair and lead attack dog. But wealthy male alumni and commentators have led the post-hearing charge. And I cannot help but wonder what would have happened or what would be happening now if male campus leaders had given legally accurate-if-ham-fisted answers.

On a separate-but-related note, I do not understand this statement from FIRE cheering Magill's resignation as an opportunity for Penn to reboot on protecting student speech (Penn is second-to-last in FIRE absurd rankings that have someone become a meaningful standard for evaluating campus speech). FIRE argues that "[a] change of leadership could be exactly what Penn needs — as long as the new leadership prizes dialogue, ideological non-conformity, a culture of free speech that takes seriously the search for truth, and the process of debate and discussion that will get students there." But Magill faced pressure to resign because she took (if in an overly lawyered way) the position FIRE advocates for--offensive antisemitic speech is protected if it stays with First Amendment bounds. Why does FIRE believe a future president will adopt and advocate for that position, having seen what happens when she does? Maybe this is about the inconsistency (so FIRE will move from Camp Three to Camp One when the right president comes in. But, again, that is not the question Stefanik asked. Moreover, many of the post-hearing attacks have framed it as "failing to protect Jewish students from antisemitism," not "restricted lots of speech until it targeted Jews." So I would not expect Magill's successor to come storming onto campus sounding like an academic Ira Glasser. 

Will the Supreme Court's Ethics Code Make Any Difference

The introduction to the Supreme Court’s new ethics code says that it is just a recap of existing principles.

Not quite, as I explain in my new column for The Hill. Here is the gist:

Will the Supreme Court’s new code make it more or less ethical? 

by Steven Lubet, opinion contributor - 12/11/23

Despite the justices’ insistence that the code only restates their existing “common law” ethics rules, there are, in fact, provisions that revise or contradict several of the court’s previous statements and practices, for better or worse.

If the provision on congressional testimony may broaden the court’s public responsiveness, another aspect of the code — in this case, the absence of a provision — seems to backtrack on an earlier commitment to greater transparency.

A “Statement on Ethics Principles and Practices,” issued by the court on April 25, and signed by all nine justices, addressed the criticism that they seldom provide reasons for their recusals. Although short of an unqualified commitment, the justices stated that in most circumstances “a Justice may provide a summary explanation of a recusal decision.”

Regrettably, it seems that the justices’ commitment to even that level of transparency was short-lived. There is no provision for recusal explanations in either the code itself or the five-page commentary appended to it.

You can read the full essay in The Hill.

Confusing what happened and what can happen on campus

Less than a week having lapsed since The Hearing, we have entered the stage in which people talk about the series of events in a way that is factually incorrect or confuses the issues.

1) Eugene Volokh writes up something I thought about after watching the video (which Steve linked to) of MIT grad student Talia Khan: Khan confuses several things, some of which the university can and should address and some of which it cannot and should not address. Khan talks about groups of students storming the offices of Jewish faculty, students blocking access to buildings, university enforcement of an office-banner rule against Khan's pro-Israel signs that was not enforced against Black Lives Matter posters, and an interfaith chaplain singling out Jewish students--all of that, if true, represents misconduct by university officials or content-discriminatory enforcement (or non-enforcement) of university rules. But Khan also talks about leaving her study group because members said the Jews at the Nova festival deserved to die; the university cannot and should not police repugnant statements in personal conversations.

A different part of Khan's statement struck me while raising the same problem. She mentions a classmate who was afraid to leave his dorm. But we again need to know more about why. Was it to avoid the offense of offensive signs and statements from protesters or was it to avoid the physical encounters? That makes a difference about how we understand not the antisemitism of it, but to understand what universities can or should do about it.

2) I have the same reaction to this piece in The Forward by a Penn undergrad alum and grad student at Columbia. She begins with the question of why Liz Magill "didn't immediately answer with an unequivocal, resounding 'Yes' when asked if 'calling for the genocide of Jews' is antisemitic?" She then shifts to a classroom assignment, in which the professor criticized her for presenting something on the Holocaust (using clips of the film Shoah) because it would make other students (those out at protests) feel uncomfortable and unsafe in the classroom and that "'this is a particular moment where Jewish suffering is not what people want to hear about.'" As with Khan, if true, this represents the university (through a professor in the classroom) infringing the speech rights of Jewish students because of the Jewish content of their speech. That is not what the hearing or the presidents' answers were about.

3) To kvell for a moment: My kid got into Wesleyan this weekend. So I was interested in this short interview with Wesleyan President Michael Roth, who in a previous era of university hatred spoke eloquently of liberal-arts education. Roth almost got it right, but not quite. He admits that his armchair quarterbacking is easy; insists that the presidents' obvious answer was "yes;" then insists that offensive speech is not violence and that students not have a right to avoid offense from non-targeted public speech. But that third point undermines the second point, unless there is an "advocacy of genocide" exception to the First Amendment or "advocacy of genocide" is, per se, incitement under Brandenburg or a true threat; neither of those points is true and I do not hear Roth suggesting either is. So I will deduct half a cheer for Roth for giving an easy answer, presumably knowing that he could not (given Wesleyan's commitments to students) to enforce that easy answer against a peaceful campus protest that included "globalize intifada" chants and signs. Still, I am glad my kid is going to Wesleyan.

4) One narrative has Magill, Gay, and Kornbluth refusing to say calls for genocide of Jews are antisemitic; this is erroneous, as they were not asked this, did not say it, and , in fact, tried to denounce such content. Nevertheless, the narrative has taken hold. Doug Emhoff said it at the menorah lighting. The author of the Forward piece linked above began with it. On my wife's listserv of Jewish alumnae, some insisted that the presidents refused to say that calls for genocide are even "bad."

5) If Paul agrees with me, that must mean we have found the correct answer.

The Genocide Convention and "Incitement"

It may be worth adding to the discussion that the U.S. Code prohibits genocide (18 U.S.C. 1091(a)), and punishes anyone who "directly and publicly incites" that offense with up to five years in prison. (18 U.S.C. 1091(c)). The statute follows U.S. ratification of the Genocide Convention by the Senate under President Reagan; the ratification contained several reservations which have been criticized as unduly restricting the scope of the prohibition. One explicit reservation was that the Senate, then under Republican control, made clear that abstract advocacy of genocide was protected by the First Amendment: "The criminal laws of many countries ban speech related to crimes such as genocide on the theory that this deters the acts themselves. The framers of our Constitution, on the other hand, were of a different view." International Convention on the Prevention and Punishment of the Crime of Genocide, S. Exec. Rept. 99-2 (1985). Kenneth Marcus, whose credentials fighting antisemitism as an academic and public official are unimpeachable, wrote in his remarkable paper on the techniques of inciting genocide Accusation in a Mirror, "most importantly for present purposes, actionable statements must be uttered in a sufficiently direct manner. The Genocide Convention and related authorities do not prohibit casual or indirect utterances, nor do they provide a general prohibition on hate speech." Whether U.S. law is wise in protecting exhortations to genocide which other countries ban is a matter which is subject to reasonable debate.  In a world which has for decades used political dog whistles to great effect, it is also worth discussing whether particular indirect statements are actually intentional incitements.

But Congress has no standing to point the finger at the Ivy Leagues. Congress writes the laws, and if they believe the First Amendment does not protect particular speech, that certain utterances promote genocide, and that such speech should be punished, they need only pass a statute, instead of lashing out at others for failing to do precisely what they have chosen not to do (or cannot do, or do not actually believe should be done).

Kenneth L. Marcus, Accusation in A Mirror, 43 Loy. U. Chi. L.J. 357, 385 (2012)

A Few Comments on This Week's Free Speech Events [EDITED]

[I've made a couple of edits, partly in light of ongoing events.]

"A few" mostly because Howard has done the work, and partly because I cannot comment on all of it. Literally: I only read the transcripts today and while I have read some commentary I have no intention of wading through all of it. I would say in brief that I agree with Howard, albeit with differences of emphasis and leaving aside certain areas I am just not interested in (Democrats vs. Republicans; Who's a Hypocrite Now?; most questions about bad faith, especially if they are aimed mostly at political actors who are elected officials, and not also at powerful political actors who are the heads of multi-million or multi-billion dollar corporate enterprises that are sensitive to the winds of consumer, stakeholder, and public opinion--in other words, university presidents).

The university presidents' answers to (dumb, foolishly yes-or-no) questions were very poorly delivered and basically correct. (Their prepared statements were a little better. But they were written as if in the knowledge that they would be ignored. Most opening statements are. But a better approach would have been to encourage the presidents to speak not in bureaucratic form, but as if writing a letter to a friend asking them to explain what the hell is going on.) President Magill's subsequent volte-face was an abdication of her duty. (But not, so far as I can tell, the reason why she lost her job. Had she done the wrong thing much earlier, she might have kept it, for the wrong reasons.*) The First Amendment protects a good deal of the speech that was complained about--and rightly so. Universities that purport to follow the First Amendment should follow the same standard.

More broadly, words and slogans do have complex meanings and legal implications depending on the understanding of the speaker and the context of their delivery, with that context potentially including the understanding of listeners. (This seems both an obvious and an unpopular point. A good deal of the "dog whistle" literature and its capacious expansion, and much of the discussion of Confederate and other symbols, seems to reject this point, sometimes quite firmly and openly.) Universities, public and private, can, consistent with the First Amendment, regulate speech more and in different ways in particular contexts and for reasons directly related to their core functions. When it comes to professors speaking way off their brief or in improper ways in particular contexts involving the direct performance of their duties, such as in the classroom, for example, they should do so. But they cannot and should not willy-nilly regulate all speech on campus, such as student speech in protest, both for reasons of the First Amendment and because doing so is inconsistent with other purposes of the university, whether or not students enjoy a freestanding right of "academic freedom" regarding all such speech (they do not; it's a misapplication of the term). And the fact that they cannot and should not do so should not be altered on the basis of terms such as "community," "harm," "sensitivity," and the like, a conclusion that does not require disparaging those concerns but does require rejecting some of those arguments as bases for universities becoming more censorious. 

To beat a dead horse of my own, the most relevant question seems to me to be one of enforcement--consistent, even-handed, accompanied by due process, and also real, existing, and sometimes and quite properly punitive. There must be real enforcement even if that requires the expenditure of university resources, even if it requires police in extreme cases, and even if it outrages students or professors. For me, the most important sentence in Howard's several posts is this one: "Some unprotected speech and conduct--occupying buildings, interrupting classes,...lacks protection regardless of its antisemitic content." (I omitted two examples that I think are more complicated and less worrisome as such.) We could add other conduct to that list, such as vandalism, assault, and direct harassment. It's the job of universities that value their mission and that value both freedom of speech and academic freedom to enforce its rules barring such conduct. Without it, whatever statements universities make about what what is and isn't permitted are not much use. None of it should happen without due process, but it should happen. If that requires extra university resources--including using those resources to identify students, who understandably would prefer to do as they wish without the university identifying them--then so be it. And it should happen consistently without regard to the identity of the actors or the viewpoints they are advancing. I will add that one bit of good news that seems to have come out of the week's events is a wider recognition--or remembering--that it is actually a good and necessary thing to guard against heckler's vetoes. That realization won't mean much, however, without actual enforcement of the rules regulating or forbidding them.  

Universities ought also to make clear that they will unequivocally reject student demands that the university refrain from investigating and disciplining them for misconduct of this sort. "We will occupy this building unless and until you promise not to discipline us for occupying this building" should be met with a flat "No" every time. If that seems to go against the Spirit of '68, I can only say that some of what the student movements did in '68 was in fact simply wrong.    

Universities have a deeply checkered recent record on this point, in my view, and it is precisely for this reason that a) they are now facing these problems and b) they also face charges of inconsistency and hypocrisy. Howard asks: "Given that we cannot predict the future, what should universities do? Is an acknowledgement of the change--which no one has done--sufficient? Must it include a mea culpa (or kaper lanu--a detailed list of past improper firings, expulsions, and sanctions against faculty and students?" If you'll forgive the upward inflection, I would answer, "Maybe?" I'm not nuts about commissions of inquiry, which are generally tedious and often serve as acts of whitewashing. But an honest examination by universities, including the issuance of a public report, might be in order. The charge of such investigations might include how they have dealt with campus disruptions and violations, whether they have acted consistently, what process they have had in place for adjudication and enforcement, whether punishments have been meted out at all and, if so, whether they have been consistently and fair, whether they have acted consistently on such matters as the recognition or rejection of student groups, how they deal with "disruptive" or "controversial" speakers, whether they have a sound policy on funding for protection for such events or one that imposes chilling burdens on groups that invite those speakers, and how it intends to act going forward.

If it were undertaken seriously, such a report might result in some embarrassing results and make some news. It might also result in some learning and some leavening of criticism. I do not think universities have an easy job of it: it's tough to identify who is misbehaving in the moment, enforcement responses may be calibrated to avoid escalation, punishment shouldn't be excessively lenient but doesn't have to be draconian, and so on. But all these things should have (or have had) equal application, and some ex post complications could be anticipated and headed off ex ante. Maybe even an unsparingly honest report would look better than I expect; maybe it would look worse; surely sometimes it would identify particular officials who deliberately interfered with or manipulated these policies or stood by when their duty was to act, for reasons of politics or bias, and who belong in different work. It might also identify students who were disciplined, formally or informally, for protected speech. But yes, even if I think the primary question is one of looking forward, surely some retrospection and study is in order.

Two final points. First, this is all about what happens on campus, not off campus. I remain concerned about the dynamic off-campus, while noting my earlier point that it's the general dynamic and the resources involved that concerns me, and that this doesn't mean employers should be utterly barred from rejecting, say, a prospective employee who has a hobby of ripping down posters, among other things. (That example seems so two weeks ago, but there are still around 140 posters' worth of remaining hostages to go, and Hamas appears to be strangely reticent concerning the whereabouts, well-being, and fate of ten women still in captivity.) Students should neither be subjected to a McCarthyite campaign, especially one that fails to distinguish between the outrageous and the merely wrong or objectionable, nor categorically (and quite impossibly) protected from ever being publicly shamed for what they say or do. And although the story is more complicated by the fact that more or less internal stakeholders were involved, I would say something similar about university presidents. Perhaps some should stay and some should go, not so much in for last week's events as for the weeks, months, or years before that; but not because of mob pressure. 

Finally, I note the letter shared below by Orly. The Israeli university presidents are not wrong to find the American university presidents' testimony lacking; everyone does, even those who agree with important aspects of it. Their statement about what freedom of speech in the United States requires is much more questionable. I think the letter is best understood not as showing that the American university presidents were wrong on that point, but as revealing a fundamental difference about what free speech in general entails and what it must not protect. Indeed, I'm surprised I haven't seen that argument more in the American context. Of course I have seen general incorrect assertions that the First Amendment does not protect "hate speech." But I haven't seen many full-throated arguments that recent events on campus and elsewhere suggest that the regnant interpretation of the Speech Clause is wrong and should be rejected in favor of a more confined one. As long as so many people are changing places (but not everyone--right or wrong, some have indeed been both consistent and even-handed), it would have been much more interesting to hear Rep. Stefanik arguing that the First Amendment should not be interpreted to protect "words that wound." She would gain strange new respect in unusual circles, to the extent that the people in those circles have not themselves changed places.    

* And an extra note about President Magill's departure, which came as I was writing the post, and now about pressure to force the resignation of Harvard's president, Claudine Gay. I have no particular brief for or against the three university presidents who testified last week. There are ample reasons to be critical of universities' commitments to free speech and the consistency of that commitment regardless of the speaker or issue involved. Those reasons far precede last week's events. A good-faith course correction would be a good, even an urgent, thing. But, in keeping with the actual purpose of congressional hearings, last week's testimony involved three prominent universities, not necessarily three of the worst universities on these issues, Again, what the presidents actually said was correct, although tone-deaf and not necessarily consistent with their actions on other controversies and with other speakers or issues. Whether they should stay or go, their universities' response should certainly not be to alter university rules of conduct in ways that are even more destructive of free speech. And members of Congress are even poorer at making university staffing decisions than university boards of trustees. "One down, two to go" is not what I would consider a genuinely constructive step forward in getting universities back to basics.   

Saturday Music Post - Yesterday

Paul McCartney's "Yesterday" is often said to be the most covered song of all time, with well over 2000 recorded versions (others say the honor goes to George Gershwin's "Summertime"). The Beatles' original 1965 release featured McCartney's solo vocal, accompanied by an acoustic guitar and a string quartet. It was an indication of things to come, as the Beatles expanded their arrangements well beyond the standard rock quartet of the Cavern Club and Hamburg waterfront days. As the story goes, the melody came to Paul in a dream. Upon waking up, he ran to the piano to make sure he didn't forget it. For some time afterward, McCartney worried that he had actually remembered someone else's tune, and refrained from recording it for fear of unintentional plagiarism. He finally figured out that it was his own in time to include it on the album Help.

The clips are at The Faculty Lounge.

Public Statement of Israel Research Universities Presidents Regarding American Universities Presidents’ Statements in Congressional Hearings

Since the horrifying atrocity of October 7th, there has been a distressing surge in anti Semitism and anti-Israel sentiment on numerous campuses across the United States, including some of its most esteemed universities. Instead of offering empathy and support to Israeli and Jewish students in the wake of the brutal massacre of Jewish communities in their homeland, campuses have witnessed protests advocating for the annihilation of the State of Israel ("from the river to the sea") and endorsing terrorist activities against Israeli citizens ("intifada"). There has been a disturbing display of hatred towards Jews and Israelis, causing fear among this community on American campuses. This resurgence of hostility evokes memories of dark chapters in Jewish history. 

Under these distressing circumstances, there is an urgent need for firm leadership on American campuses—leadership that unequivocally declares, "This far, no further." Regrettably, such resolute leadership appears to be lacking at present. While some individual academic leaders have vocally opposed anti-Semitism and actively worked against it, many others have remained silent. 

In a disconcerting recent hearing held in the U.S. Congress, presidents from three prominent universities (Harvard, MIT, and Pennsylvania) were questioned about their stance on severe instances of anti-Semitism on their campuses. Although these leaders acknowledged the existence of anti-Semitic expressions, they maintained that curbing a significant portion of these expressions is challenging due to their protection under the banner of free speech. 

During a critical moment in the congressional hearing, the university presidents were asked whether a call for the genocide of the Jewish people aligns with their institutions' codes of conduct. Astonishingly, they struggled to provide a straightforward "no" and instead offered vague responses, suggesting that the response depends on the context. This hesitation raises concerning questions about the interpretation of free speech. 

Following the hearing, the president of Harvard University released a brief statement emphasizing the institution's prohibition of anti-Semitic expressions, a sentiment echoed by the president of the University of Pennsylvania. 

The positions taken by the university presidents during the congressional hearing, suggesting that anti-Semitic expressions and calls for genocide may fall under the umbrella of free speech, defy the principles of the U.S. Constitution. A nation that permits a call for genocide in the guise of freedom of speech does a disservice to its values. Freedom of speech, while a fundamental right, must yield in the face of incitement, hatred, and calls for violence, especially a call for genocide. This principle holds true not only in the United States but also in all democratic countries globally.

The university presidents' failure to provide a firm stance in dealing with instances of anti-Semitism and anti-Israel sentiment on many campuses in the United States is alarming. Apologies and expressions of regret are not enough; what is required are clear and decisive actions. In their testimony before Congress, the university presidents mentioned measures taken or planned to protect the security and well-being of J

ews and Israelis on campuses. 

It is now their responsibility to ensure the effectiveness and sufficiency of these measures. The burden lies on their shoulders to demonstrate that the universities they lead not only excel in academics but also uphold universal humanistic values and defend the rights of minorities. It is imperative that everyone understands that advocating for the destruction of a people is strictly prohibited at Harvard, MIT, Pennsylvania, and everywhere else in the world. 

Prof. Arie Zaban, President of Bar-Ilan University; Chairperson of Association of University Heads, Israel – VERA 

Prof. Daniel Chamovitz, President of Ben-Gurion University of the Negev Prof. Alon Chen, President of the Weizmann Institute of Science 

Prof. Asher Cohen, President of the Hebrew University of Jerusalem Prof. Leo Corry, President of the Open University 

Prof. Ehud Grossman, President of Ariel University 

Prof. Ariel Porat, President of Tel-Aviv University 

Prof. Ron Robin, President of the University of Haifa 

Prof. Uri Sivan, President of the Technion-Israel Institute of Technolog

A mess of stuff on campus speech

A mess of items today that reflect different pieces of what I have been trying to put together this week.

1) Popehat began his Camp One defense by attacking the premise of the committee hearing:

A more realistic interpretation is that the hearing was a crass show trial primarily intended to convey that a wide variety of dissenting speech about Israel is inherently antisemitic, that American colleges are shitholes of evil liberalism, and that Democrats suck. Since Democrats do suck, they mostly cooperated. [citing statements by Pennsylvania Governor and potential 2028 presidential candidate Josh Shapiro].

As if to prove White's point, Doug Emhoff at the National Menorah Lighting took aim: "Seeing the presidents of some of our most elite universities literally unable to denounce calling for the genocide of Jews as antisemitic — that lack of moral clarity is simply unacceptable." Except Magill, Gay, and Kornbluth did not fail to denounce calls for genocide as antisemitic. No one asked whether calls for genocide or "river to sea" are antisemitic; Stefanik asked whether those statements constitute protected speech and they gave the correct answer of "it depends on context," because it does. In fact, they did at points condemn the message, just without expressing intent to sanction the speech where it remained protected.

2) David Bernstein said on Twitter (I cannot find the link) that the problem is not universities' failure to stop hate speech but their failure to enforce existing content-neutral campus regulations. The comments of the MIT student in the video Steve links to (and of other students who spoke outside the hearing) confirms that; universities can and should proscribe and sanction much of what she describes, although not because the speech is antisemitic. Had the hearing focused on those university failures, it would have played very differently. Of course that was never the point. Popehat again: "many people bought it, and now it’s being used as part of the culture war against higher education, and too many of you fucking fell for it."

3)Eugene Volokh emphasizes an often-overlooked value of speech: Know what people are thinking:

No-one likes rude awakenings, bitter lessons, and situations with which one is not quite sure how to cope. But they are tremendously useful. Many of us have indeed been rudely awakened to the magnitude of hostility in many American universities to Israel, Israelis, and Jews. But that's not because there has been a surge of such hostility: It's because the existing hostility has revealed itself.

Thanks to the freedom of speech, we have a better sense now than before of who our enemies are, and who our friends are. We have a better sense of how our institutions operate. We have a better sense of how the ideologies that many teach there can play out.

4) Glenn Reynolds attempts to, in my terms, move folks from Camp Three to Camp One:

But as much as I enjoy seeing these people stew in the juices of their hypocrisy – and believe me, enjoy it I do -- it is nonetheless true, as Eugene Volokh cogently points out, that free speech principles, and the First Amendment where it applies, prevent things like a selective ban on anti-semitism, or on “advocacy of genocide” or whatever.

He opposes proposals for new restrictions on campus and a new commitment to the old protections for campus speech. He argues campuses adopted those to protect lefties from the conservative establish; the reverse may have a salutary effect.

5) Rep. Stefanik published an op-ed in the Wall Street Journal (looking for an unpaywalled copy--will update if I find one) placing herself in Camp Three. Of course, that is not the position she pursued through her questions on Tuesday. Maybe she recognized the potential problem with Magill's suggested solution of expanding codes of conduct to reach more speech.

6) I will leave on this question: What will it take to move campers from Three to One? As I have said, I believe many of these campers agree that a lot of this speech (including a lot of the speech at the center of this week's controversy) is protected because it does not rise to incitement, threats, or harassment. But they: 1) Recognize that universities have not acted as if it were protected until Jews were the targets and 2) Expect universities to return to past practices when future speech targets different groups. Given that we cannot predict the future, what should universities do? Is an acknowledgement of the change--which no one has done--sufficient? Must it include a mea culpa (or kaper lanu--a detailed list of past improper firings, expulsions, and sanctions against faculty and students? Must that include some compensation or restitution to them? Does it require more formal prospective commitments? Must universities dismantle the DEI apparatus and presence of CRT programs (that is Reynolds' answer) and maybe all Sociology programs (another WSJ suggestion)? Something more? It would great to see this become the question, rather than unhelpful insistence--perpetuating universities past sins--that everything is incitement to violence.

Presidential Quo Warranto

Suppose we discovered tomorrow that President Biden is actually less than 35 years old. (I know, I know). How can an ineligible President be removed? Right now, there are two options: (1) impeachment and (2) the 25th Amendment. Both of these are hard to implement. Is there no other way?

During the 1876 presidential election fiasco, Congressman David Dudley Field proposed legislation to establish a federal quo warranto remedy that might have let courts remove an ineligible President. Field was Justice Stephen Field's brother and was responsible for the codification movement that swept many states during the 19th century. He explained that that his bill would allow the federal courts to provide a "remedy for a wrongful intrusion into the office of President or Vice-President." Field was focused on election fraud, though he mentioned that the presidential electors themselves could be ineligible. (There were accusations in 1876 that a few presidential electors were ineligible under Section 3.)

Field then explained that there was a precedent. He said "there now stands upon the statute-book authority for a quo warranto . . . a quo warranto to try the title to the presidency--in cases arising under the Fourteenth Amendment." He then quoted the language:

"Jurisdiction is given to the circuit courts of all suits to recover possession of any office except that of elector of President and Vice-President, or Representative or Delegate in Congress, or member of a State Legislature, where the sole question arises out of the denial of the right to vote on account of race, color, or previous condition of servitude."

Why did Field think that that this statute covered the presidency? Because it said "any office." (This is, of course, similar to what Section 3 of the Fourteenth Amendment says.)

What Field did not say is whether quo warranto could remove a President or only a President-elect. You can distinguish those positions, and Field did not discuss impeachment at all. It's an interesting hypothetical/exam question.

 

Race or Rez?

In argument in Harrington v. Purdue Pharma (on the settlement of the opioid bankruptcy), there was much discussion of the "res" of the bankrupt estate. Justice Gorsuch and Barrett referred to it as a "rehz" (as opposed to "race"), a pronunciation I never heard before.

M.I.T.

Much has been written here about Rep. Stefanik's grilling of the three university presidents. Here is what one M.I.T. graduate student had to say:

 

Poor Gerald Ford

In the Section Three litigation, one argument for why the President and Vice-President are not officers of the United States is that only appointed federal officials are officers of the United States. If correct, it's a bright and clean dividing line, right?

But what about Gerald Ford? He was an appointed Vice-President and President. And what about Nelson Rockefeller, who was also an appointed Vice-President. Were they officers of the United States? If not, why not? (I can't find anyone who addressed this in the 1970s.)

It's fair enough to say that the Twenty-Fifth Amendment just creates an exception to the appointed/elected distinction for officers of the United States (if Ford and Rockefeller were such officers). But if the 25th Amendment could make such an exception to this purported rule, why not the 14th Amendment?

Woody Guthrie on Hanukkah

Chag Sameach, beginning tonight at 4:19 CT.

 

Many camps respond to the antisemitism hearing

From bouncing around the internet, it seems to me that reactions to the context matters remarks from the three university presidents fall into three camps:

Camp One: They were right, although they did not express the point well. This is the First Amendment community, me included. I recommend what Lee Kovarsky and Eugene Volokh wrote, basically arguing there is no "genocide exception" to the First Amendment. Maybe the presidents could have said it better, but the essential point--context matters--is correct and unavoidable under the First Amendment and these universities' voluntary commitments to free speech. Update: Two more in this camp: Popehat (no surprise--he offers some good examples of what falls on which side of the line) and David Lat (who makes a version of my argument that conservatives will be singing a different tune if Magill follows through on her suggestion to decouple Penn's code of conduct from the First Amendment and the university cracks down on Students for Life of America).

Camp Two: They were wrong; any mention of eliminating Israel is a call for genocide and any call for genocide is a threat or harassment to any individual Jewish person who hears it. This is the ADL, Hillel, and other Jewish organizations. This is many of the non-lawyers, especially alums of the three schools, who do not understand or care about free speech, at least where they dislike the speaker and like the target of the speech. This camp is going to be very upset when Jewish students who support the Hamas war are sanctioned for supporting genocide. (Update: Most importantly, Camp Two wants these presidents to resign in disgrace).

Camp Three: The sudden solicitude for hateful and offensive speech is problematic and insincere because they have not (and likely still would not) express similar solicitude for calls for genocide against Black people or Palestinians. This seems to be many conservative and/or Jewish lawyers and legal academics. It perhaps is Stefanik, had she gotten different answers at the hearing(although, again, bad-faith actor, so who knows?). I think many in this group share the free-speech commitments of Camp One, but doubt the presidents will continue to do so. They watched schools come after speech and speakers because groups other than Jews felt "unsafe" or "threatened;" they watched schools issue public statements and offer support over numerous major world events that affected students as citizens of the world but did not affect the university as university; they watched solicitude and lack of consequence for students who occupied public spaces (the sort of content-neutral regulations universities can enforce). Yet when Jewish students felt unsafe on campus or when Jewish students were affected by world events, they were silent--no (or mealy-mouthed) public statements, a sudden understanding that hateful speech is protected, and a sudden devotion the Chicago Principles. Camp Three also worries about where we go next--when the next big event triggers different speech targeting different groups, how will universities act?

For the moment, therefore, Camp Two and Camp Three align--the presidents' answers were unacceptable and morally bankrupt and all should resign in disgrace. The question is where Camp Three goes as we move away from the heat of this hearing. I believe many in Camp Three recognize that the presidents were right and context does matter. And they must know that going to Camp Two likely will be worse for Jewish students, conservative students, and other preferred speakers. A second question, as I think I have said before, is how to respond when university leaders do the right thing for the wrong reason. If universities should abide by Chicago Principles and allow constitutionally protected offensive speech, should Camp Three accept and work with the right result, even if they reached it for the wrong reasons. Some of this may be suspicion that the commitment will not last when Jews are not the target (see above). But if so, it seems to me Camp Three's response to the hearing should not match Camp Two. Instead, it should be "welcome to the party, pal, but we will be watching to ensure you adhere to these newfound commitments. And your failure to do so may provide a basis for Title VI liability."

Review of "Washington's Heir"

There is a thoughtful review of the book in the new issue of the Journal of Supreme Court History. I can't link to it because it's behind a paywall, but I'm sure there are some subscribers who read this blog.

Penn abandons the First Amendment (Updated)

Lee Kovarsky and Eugene Volokh offer great defenses of the presidents' answers at Tuesday's hearing, reaching similar conclusions to me in more articulate terms.

Unfortunately, the bad-faith pressure provided too much. Penn President Liz Magill posted a video, apologizing for answering the "does this violate the code of conduct" question in constitutional terms and stating her views that calls for genocide are threatening. She announced plans to reconsider the university code of conduct, with particular reference to whether calls for genocide should be punished as harassment or intimidation. As she put it, "Penn's policies have been guided by the Constitution and the law," but those policies must be "clarified and evaluated" in light of the new rise in antisemitism on campus and across the country.

This is bad for several reasons. As Eugene argues, students must be free to debate important moral, political, legal, and historical questions of when political violence and large-scale loss of civilian life is justified--in Gaza, in Israel, in Germany or Japan during World War II. Those debates are impossible if the university deems such discussions to threaten those who are part of or affiliated with the group suffering in war.

Supposed supporters of Jewish students and Israel may come to regret changes to the policies. Many regard Israel's war on Hamas as a genocide; Jewish supporters of Israel's war effort therefore violate the revised code that regards promoting genocide in the abstract as "threatening" some undefined and unknown Palestinian students. (An emailer described to me an incident at a private university in which a student was reprimanded for saying those defending Hamas are defending baby-killers and thus offending those students--not too far afield. Refusing to have the Constitution and law guide university policies can only lead to more such incidents). Supporters of Israel and Jewish students complain that universities have failed to protect Jewish students from offensive speech in the past two months when they have bent over backwards to protect every other groups from offensive speech. This is a fair criticism. But the answer cannot be to give universities an actual weapon--more-restrictive/less-speech-protective conduct codes-- that universities might use against Jewish speakers.

Finally, of course, the change will not appease bad-faith actors. When Penn applies its new, less-protective policies to sanction a Jewish student who "harassed" a Palestinian student by supporting "genocide" in Gaza, Elise Stefanik and Virginia Foxx will demand that Magill explain why her university has abandoned the freedom of speech.

Update: Claudine Gay (Harvard) issued the following statement:

There are some who have confused a right to free expression with the idea that Harvard will condone calls for violence against Jewish students. Let me be clear: Calls for violence or genocide against the Jewish community, or any religious or ethnic group are vile, they have no place at Harvard, and those who threaten our Jewish students will be held to account.

The first sentence works and would have been helpful at the hearing. I think the devil is in the last clause of the second sentence--does "threaten our Jewish students" mean in the First Amendment sense or in the colloquial sense?

“The Undersigned Hereby Agrees to Act Sensibly“

Howard should find this story interesting. It’s about measures taken for a talk at Yale by a Palestinian journalist. Here’s the good stuff:

Each attendee was asked to sign a form acknowledging Yale’s Free Expression Policy and agreeing not to record the talk. Chatelle told the audience at the beginning of the event that the form was a “new precaution” put in place in light of recent violence against Palestinian students, citing the recent shooting of three Palestinian college students in Vermont. 

Yale’s Free Expression Policy stipulates, per the form, that students’ right to protest or express disagreement with a speaker is subject to three conditions. First, access to an event or facility may not be blocked; second, the event and the regular or essential operations of the university must not be disrupted and third, the safety of those attending the event and other members of the community may not be compromised.

“Should anyone choose to disrupt the event, you will be given the opportunity to stop, and if you do not, per Yale’s policy: ‘you will be subject to possible disciplinary sanctions, citation, and summons,’” the form read. 

Chatelle told the News that she and other event organizers were concerned that participants’ safety could be compromised if the talk was recorded and shared online. The organizers were also concerned that people would try to interrupt the event. 

“I think Ameera had a lot of very important things to say,” Chatelle said. “I didn’t want it to get disrupted by people who disagreed with the contents of the talk.”

I’m not sure what the form adds other than the obligation not to record. As the story notes, everything else is already university policy. The only relevant question is whether such a policy will be applied and enforced, hopefully consistently. If not, I suppose one could sign the form and then act as one liked, no-platforming at will and taking the easy bet that little by way of disciplinary consequences would occur. I’m guessing that the form was less meaningful in allowing for an invited speaker to speak than the fact that “representatives from the Office of Student Affairs and the Office of Public Affairs and Communications were present at the event…, as well as marshals, legal observers and at least one plainclothes police officer stationed outside.” A security apparatus always helps things go down smoothly.

All these things were coordinated between the university’s Assistant Vice President for University Life and the presumably pro-police student group Yalies4Palestine. I hope the university is equally willing to provide such support for any and all student groups, presumably with the same cost-sharing arrangements. Things might be overly tamped down, but a lot more interesting voices might be heard on campus, with “heard” being the operative word.

What I found especially interesting was the last quote. It’s a pleasure to see students reasoning their way toward an understanding of the value of heckler’s veto doctrine. They may find that rather than get there contract by contract, they should just insist that students honor the existing university policy all the time and that the university honor its disciplinary obligations with equal consistency. Everyone might find that it’s a pretty good arrangement.

Harvard Hillel responds to President Gay

Harvard Hillel was not pleased with university President Claudine Gay's testimony, especially her answer about "context" to Stefanik's question. It sent the following email:*

[*] For those wondering, since I did not go to Harvard: I donated to Harvard Hillel in Dan's memory years ago. One cannot escape their mailing list.

Here is the key paragraph:

We are appalled by the need to state the obvious: A call for genocide against Jews is always a hateful incitement of violence. President Gay’s failure to properly condemn this speech calls into question her ability to protect Jewish students on Harvard’s campus. Chants to “globalize the intifada,” an endorsement of violent terrorist attacks against Jewish and Israeli civilians, and “from the river to the sea,” an eliminationist slogan intended to deprive Jews of their right to self-determination in Israel, have become tragically routine at Harvard. President Gay’s testimony fails to reassure us that the University is seriously concerned about the antisemitic rhetoric pervasive on campus. We call on President Gay to take action against those using threatening speech that violates our community standards. 

Again, this errs as matter of basic U.S. free speech law. And note the move--in the first sentence it is incitement of violence, in the second it is threatening. But with more--- context---nothing in this paragraph is legally accurate.

In fairness to Hillel, its mission is different than that of members of Congress or attorneys; it acts on commitments other than free speech. But if politics is the art of the possible, Hillel would be better served by recognizing and working within the limitations that free-speech commitments impose, rather than denying they exist and thus demanding what a university or government cannot give.

I reprint the email in full after the jump.

Dear Harvard Hillel Community,

 

Earlier today, Harvard President Claudine Gay testified before Congress about rising antisemitism at Harvard. When pressed during her testimony, President Gay repeatedly equivocated, refusing to characterize calls for the genocide of Jews as a breach of Harvard’s code of conduct, instead saying the offense “depends on the context.” 

 

President Gay’s refusal to draw a line around threatening antisemitic speech as a violation of Harvard’s policies is profoundly shocking given explicit provisions within the conduct code prohibiting this kind of bullying and harassment.

 

We are appalled by the need to state the obvious: A call for genocide against Jews is always a hateful incitement of violence. President Gay’s failure to properly condemn this speech calls into question her ability to protect Jewish students on Harvard’s campus. Chants to “globalize the intifada,” an endorsement of violent terrorist attacks against Jewish and Israeli civilians, and “from the river to the sea,” an eliminationist slogan intended to deprive Jews of their right to self-determination in Israel, have become tragically routine at Harvard. President Gay’s testimony fails to reassure us that the University is seriously concerned about the antisemitic rhetoric pervasive on campus. We call on President Gay to take action against those using threatening speech that violates our community standards. 

 

We do agree with President Gay’s testimony that education on antisemitism is urgently needed at Harvard. Harvard Hillel is ready to work with the administration to bring robust education and training on the history of the Jewish people and the evolution of antisemitism to every audience at Harvard — administration, faculty, staff and students.   

 

We will continue to hold the University administration accountable to make Harvard a place that Jewish students can learn, live, and thrive without fear and intimidation. 

More oxes, more gore, more free-speech opportunism

The House Committee on Education and the Work Force held a hearing with the balanced title Holding Campus Leaders Accountable and Confronting Antisemitism, with Claudine Gay (Harvard), Liz Magill (Penn), Sally Kornbluth (MIT), and Pamela Nadell (History & Jewish Studies, American). Video (I have not had a chance to watch yet) here; news reports here, here, here, and here. More detailed report here.

Committee Chair Virginia Foxx (N.C.) set the tone in her prepared remarks:

Today, each of you will have a chance to answer to and atone for the many specific instances of vitriolic, hate-filled antisemitism on your respective campuses that have denied students the safe learning environment they are due. As you confront our questions in this hearing, remember that you are not speaking to us, but to the students on your campus who have been threatened and assaulted and who look to you to protect them.

More:

Harvard also, not coincidentally but causally, was ground zero for antisemitism following October 7th and is the single least tolerant school in the nation according to the Foundation for Individual Rights and Expression’s 2024 College Free Speech
Rankings. UPenn is right behind them at 247th of 248. MIT is in the middle of the pack.

First, I am old enough to remember Republicans seeing large numbers of students who claimed to have been denied a "safe learning environment" because of "vitriolic, hate-filled" speech (anti-Black, anti-immigrant, anti-LGBTQ+, anti-feminist)--and deriding those students as "snowflakes" who need to grow up and learn to hear and engage with ideas they disagree with, even if they find them offensive. Now, students are "threatened and assaulted" by offensive speech; universities have failed to protect these wronged non-snowflakes; and students earn invitations and special mention at congressional hearings. I also am old enough to remember Republicans complaining about universities issuing public statements about current events and condemning speakers for certain expression. Now university leaders lack the "moral clarity" and "courage to delineate good from evil and right from wrong." And thus to do what? I guess shut down or sanction offensive speech or issue public statements against it.

Second, Foxx's demand for universities to "do something" about all this antisemitism conflicts with the criticism in the second quoted paragraph. Because much of the antisemitic speech people complain about remains constitutionally protected,* shutting down or criticizing that speech would earn these schools worse rankings in FIRE's next survey. FIRE evaluates not only formal university efforts to shut down speech but also the extent to which students "feel" that they cannot speak because fellow students and university officials think less of them and/or criticize them for their ideas. Both are what Foxx seems to demand of Harvard, Penn, and MIT. (If it is not clear, I think the FIRE survey is scientifically nonsensical. That Republicans have weaponized it in this way all the more so).

[*] Examples of actual assaults or unprotected speech are relatively rare. Some unprotected speech and conduct--occupying buildings, interrupting classes, projecting images onto buildings, chalking--lacks protection regardless of its antisemitic content. We perhaps can make hay if schools refuse to punish those who engage in unprotected activities or punish them differently than those who engage in the same activities with different messages. (See, e.g., the non-punishment of some pro-Hamas/anti-Israel events at MIT).

Things unsurprisingly went downhill from there. The exchange garnering the most coverage features Rep. Elise Stefanik (NY) asking whether calling for the genocide of Jews (a fair interpretation of "from the river to the sea") violates university codes of conduct or constitutes bullying or harassment. Magill, Gay, and Kornbluth all responded with some form of "context matters," looking at whether it is directed or whether it crosses into conduct.

But context does matter, at least for public universities and private universities (such as these and most elite research universities) agreeing to abide by the First Amendment--as these and other Republicans have been demanding for years when it comes to speakers they like demeaning, offending, and harassing listeners they don't like. A general call for genocide that does not cross into true threats, incitement, or harassment--which is to say most such speech--retains constitutional protection and thus cannot violate a code of conduct interpreted in light of free-speech concerns. Perhaps the presidents' erred in not framing their discussion of context in an explicitly First Amendment framework. While discussing "context" and "wide berth to freedom of expression," none presented in concrete terms of what this means for codes of conduct and what speech is permitted on campus. Or perhaps respond this way--"if Nazis can march in Skokie, Hamas-loving students can chant 'river to the sea' at Harvard."

I apologize that I am becoming (have become?) redundant on this. But the point remains relevant so long as political leaders (and advocates, some of whom I assumed knew better) make bad-faith statements at bad-faith hearings that show their commitment to free speech lasts as long as their agreement (or lack thereof) with the speech at issue and their sympathy (or lack thereof) with the targeted-and-unsafe student group. And I return to my initial question--what do they expect university presidents to do and who will they react when university leaders address other "viotriolic, hate-filled" speech? On that, this Politico interview with Eugene Volokh hits on many of these issues. Although the piece mentions the coming hearing, Volokh does not talk about it in the Q&A. Based on his answers, I expect (hope) he would be as critical of this hearing and this general conversation.

The 3d Annual Law vs. Antisemitism Conference, hosted in February at FIU, will include a roundtable discussion on campus antisemitism and free speech. We will try to work through these issues.

What John Roberts Could Learn From Niccolò Machiavelli

My new essay in Washington Monthly explains why the Supreme Court could have avoided a lot of trouble by consulting the work of a certain Renaissance political theorist. Here is the gist:

What John Roberts Could Learn From Niccolò Machiavelli

It takes a lot for a historical figure to be memorialized for nearly 500 years as an eponymous adjective. Still, Niccolò Machiavelli achieved that feat as the progenitor of devious political scheming. Nobody today wants to be called Machiavellian, but the truth is that Machiavelli provided some excellent advice to his patrons in 16th-century Florence, aspects of which remain valuable today. Even the Supreme Court, it turns out, could have benefited from Machiavelli’s counsel regarding their adoption of written ethics rules.

As Machiavelli explained in The Prince in 1532 when a disease begins, “it is easy to cure but difficult to diagnose; after a time . . . it becomes easy to diagnose but difficult to cure. So it is in politics.” And so it was with the Supreme Court’s belatedly-issued Code of Conduct.

The court spent decades refusing to adopt a code of conduct at a time when it could have announced clear ethics standards unencumbered by the revelations that disastrously surfaced this year. When the court finally acted, it was already mired in scandals involving the sketchy finances of several justices. By then, as Machiavelli predicted, it was too late for a code to “cure” the court’s ailing reputation. 

You can read the full essay in Washington Monthly.

Court dumps tester case

On mootness grounds in a 3+-page opinion from Justice Barrett; the court vacates the lower-court judgment under Munsingwear.  The interesting stuff is two opinions concurring in the judgment.

Justice Thomas argues that the plaintiff lacks standing and, because standing is antecedent to mootness, the Court should resolve the case on that basis. His standing analysis--whether intentionally or not--illustrates why this is all merits. Thomas repeatedly describes standing as being about legal rights: " To have standing, a plaintiff must assert a violation of his rights;" plaintiff "lacks standing because her claim does not assert a violation of a right under the ADA, much less a violation of her rights." But the Court describes standing as being about injury, not legal right; standing asks whether plaintiff suffered an injury, while the merits consider whether he has a right under some legal source and whether that right was violated. Fletcher's essential insight, which Newsom carries forward, is the impossibility of separating the tww--one cannot suffer an injury unless a legal right attaches to it. I think either would say, on a clean slate, Laufer loses because she does not have a right to information under the ADA and thus loses on the merits. Is Thomas moving towards that view?*

[*] The injury/right separation becomes clearest for third-party standing--the plaintiff suffered an injury while some third party suffered a violation of her rights. Of course, Thomas rejects third-party standing.

Justice Jackson concurs in the judgment to argue that the Court grants Munsingwear vacaturs too automatically, although she agrees with vacatur here because the plaintiff--the victor below--unilaterally caused mootness. Jackson would ratchet up the burden on the party seeking vacatur to show a specific harm beyond disagreement with the lower-court judgment. There is no right to appellate review and the lower-court judgment--valid and binding and precedential when rendered in a live action--is entitled to a presumption of correctness and value that warrants its continuation.

Tushnet on Ephemeral and Enduring Constitutional Scholarship

I've written here before that I always find Mark Tushnet's posts on legal scholarship at Balkinization must-read stuff. I wish he posted more often. Happily, he has given us three interesting, related posts--here, here, and here. In them, he explores what makes for "ephemeral" and "enduring" legal scholarship in constitutional law. His overarching view is that "a great deal of doctrinal and normative scholarship in constitutional law is quite ephemeral." Scholarship that "develops the normative basis for specific outcomes in real constitutional controversies" is hampered by the felt need to "track, to some significant extent, contemporary or recent Supreme Court decisions," which "change in normatively relevant ways often enough to make work that satisfies [that] condition [ ] ephemeral." "Normative discussion of the structural Constitution," in which "authors identify a current problem arising from settled understandings about that Constitution and propose structural reforms that would alleviate that problem," is generally overly focused on some recent event, and generally involves a long-enough time frame that "by the time you might be able to get those changes made, things have changed so much that" that the work is again renedered ephemeral. Enduring works of constitutional scholarship, in his view, "identify some things about the deep structure of the topics they cover. They provide a vocabulary for discussing the issues within their scope no matter what those issues are," in a way that is both less time-bound and more removed from immediate political controversies. Tushnet sums up as follows:

I’m led back to something I wrote in the first of these posts: that normative scholarship that focuses on recent Supreme Court cases tends not to endure. Maybe the point is that mostly that scholarship thinks that it’s getting at something deep (about distributive justice or equality or …) but it’s actually doing no more than present a contemporary partisan position as a deep truth. Again, the article[s] that endure let us think about the issues we care about no matter what side we take in contemporary controversies.

The posts are long and well worth reading. (I would say "long but well worth reading" but--come on. Look who's talking.) They are interesting, exploratory, impersonal--he is talking about a phenomenon, a "sociology of the legal academy"; he's not throwing stones or calling anyone's work crap--and tough-minded, written in the knowledge that his conclusions about ephemerality not only embrace some of his own work but, and perhaps more importantly, that of friends, allies, and colleagues.  

Seeing these posts makes me reflect yet again that I don't see as much serious, impersonal, tough-minded writing about scholarship in our field as I would like these days. By "about scholarship" I don't mean just meta-commentary about what we do, although I surely mean that too. But I don't even see as much simple substantive criticism of other scholars' work as I would expect--not good criticism, and certainly not good criticism of one's fellow travelers' work. I tend to blame political and cultural siloing, along with a heavy dose of therapeutic culture, which is not good for intellectual work. The relatively monocultural politics of the legal academy don't help. (There are differences in those politics seen up close, of course.) But that's not the whole of the story. Broadly speaking, I see a good deal of scholarship and public-facing, ie. social media, discourse in which any serious criticism is directed only, and merely, at one's adversaries, at people outside one's silo. And that's if one is lucky. Often enough, writing outside one's silo is simply disregarded, or it's dismissed in extravagant, shallow, and uninteresting terms. The better instances of criticism, when they appear, are not so much thorough as prosecutorial, with all the strengths and limitations that entails.

Within one's silo, there's an awful lot more praise--also extravagant, shallow, and uninteresting--than criticism, at least publicly. This seems to be a function of an academic culture in which "mutual support" is seen as an unalloyed good and apparently entails an absence of tough, impersonal criticism--again, at least publicly. I understand the roots of this, but it seems to me that not seriously criticizing one's friends or politically aligned fellow scholars is tantamount to not respecting them or taking them seriously as scholars and intellectuals. (Mark has been reading through his library and recently had tough words for my first book. I could have cried about it, I suppose--except that his actually engaging with the book is a lot better than some meaningless, enthusiastic blurb that signifies friendship rather than actual interest.) What I see on social media, when I visit it, is a great deal of "Fabulous new article by..." and "Excited to share X's terrific new piece," followed by a round of mutual compliments. Perhaps it was a terrible mistake for scholars to befriend each other on social media.

I suppose this is a form of mutual support. But law school and legal scholarship are most definitely markets, and what it mostly looks like to me is marketing, logrolling, and reciprocal flattery. Surely there is a substantial element of hustling in all this, because I can't imagine anyone enjoying it for its own sake or learning from it. At least with respect to the legal academy, the difference between "mutual support" and "life under late capitalism" seems to me to be rather hard to discern.  

Misinformation at the Oakland City Council

Presented here without comment.

 

A Thought Experiment About Richard Nixon

It's 1975. Richard Nixon is on trial for Watergate crimes. He does not have a pardon. His lawyers and supporters ask the Court to dismiss the prosecution. Why? Because the trial, conviction, and/or imprisonment of a former President would be bad for America. I think it's fair to say that a court then (and now) would reject such an argument. Public policy concerns do not allow courts to set aside the law as applied to the facts for a given defendant. Only a pardon can take the wider public interest into account once a criminal prosecution is brought.

Many of Donald Trump's arguments in the ongoing Section Three litigation are similar to the hypothetical Nixon case. The claim is that disqualifying an insurrectionist former President from the ballot would be bad for America. A court cannot and should not consider these policy arguments. Only Congress--through its amnesty power--can.

This issue was briefly discussed in a District Court opinion upholding the constitutionality of Ford's pardon. In Murphy v. Ford, 390 F. Supp. 1372 (W.D. Mich. 1975), the Court said: "Few would today deny that the period from the break-in at the Watergate in June 1972, until the resignation f President Nixon in August 1974, was a ‘season of insurrection or rebellion’ by many actually in the Government." Nevertheless, President Ford exercised "prudent public policy judgment" in pardoning Nixon.

Whether you agree with Ford's pardon or not, it was his call to make and his alone. Likewise, only Congress can give Donald Trump a Section Three waiver from his season of insurrection or rebellion. Courts can look only at whether his conduct was disqualifying.  

Swing Justices and "Legacies," Again

Some of the celebrations--quite justified--and remembrances of Justice Sandra Day O'Connor, focusing on changes on the Court since she retired, have focused on her "legacy" and worried that it is being undone. She was evidently not happy about that either, according to this excellent but odd obituary. (Excellent because of its detail and clean prose; odd because of its urgent insistence, not entirely respectful to her memory, on fixing her in the public annals as a liberal rather than a conservative, a feat that is achieved partly by excoriating the current Court but mostly by relegating a great many of her views and opinions to the 43rd paragraph and lower.) This reminds me that we went through the same discussion quite recently. In September, a Washington Post story argued that former Justice Anthony Kennedy’s "mark is fading fast—and is already erased in some areas." At the time, I suggested in response that for a number of reasons, a swing justice's legacy is bound to be evanescent.  

Not to repeat myself, but the same thing applies here--and not only because of the current Court, despite its 2021 and 2022 terms. (My guess at the moment is that the 2023 term will be more of a term that uses the Fifth Circuit as a foil to signal that it has its limits and will move only when it wants to. Of course I could be wrong, and there's little point in predicting the future, since it will come along presently anyway.) On a closely divided court, a swing justice doesn't get a legacy; she (or he) gets power instead. That's no small thing, and it can conduce to the good. But that power derives from the balanced instability of that court on which the swing justice serves as the fulcrum. Inevitably, with a change in personnel, one of two things will happen: the balance will shift decisively in one direction or the other, depriving the swing justice of her pivotal power; or a different fulcrum point will emerge, giving some other justice the swing-vote power and putting the former swing justice's compromises in play once again. In Justice O'Connor's case, both things happened in reverse succession: after Justice O'Connor retired, first Justice Kennedy became the swing justice and then, after both were gone, the balance of the Court shifted decisively and neither justice's compromises were likely to remain in place. To quote a sage:

The "legacy" of a swing justice does not have much to do with the future at all. The value of a swing justice lies in the present: in striking compromises that smooth things over for a little while in an area that is contentious on and/or off the Court. That's not necessarily a bad thing and may be a very good one. But it should be celebrated for what it is: a compromise, a fix for an immediate need, a bit of gaffe tape at a useful moment to make sure the car doesn't go careening in one direction or the other. What it is not is a recipe for a long-term "legacy."...