Dorf on Law

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

2026-11-06T07:00:00.000-05:00

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

The title of my keynote is Realism, Formalism, Courage, and Hyperopia: Reflections on the Roberts Court’s Response to Authoritarianism. In a few places it draws on an essay I wrote for SCOTUSblog in July but the overall topic and thesis are new. The lecture will ask the question whether legal realism might impede the ability of courts to block authoritarianism. That question was sparked for me by the observation that when lower court judges have stood up to President Trump's most aggressive second-term actions, they have done so using formalist language, saying, in effect: the law here is clear, so I have no choice but to invalidate the administration's action. As I shall say in my lecture:

For example, just a few days into Trump’s second term, Federal District Judge John C. Coughenour, an appointee of President Reagan, had this to say about the birthright citizenship executive order: “I’ve been on the bench for over four decades. I can’t remember another case where the question presented is as clear as this one. This is a blatantly unconstitutional order.” As we know, three Supreme Court Justices would ultimately vote to uphold the order and a fourth would find it constitutional but in violation of a statute. At the time, however, the ability to assert that Trump was blatantly violating the Constitution was rhetorically useful. I am not accusing Judge Coughenour of lying, but if he was lying, that is, if he thought the “subject to the jurisdiction thereof” language of the Citizenship Clause and United States v. Wong Kim Ark left some wiggle room for the Trump order, his invocation of formalism might be considered a noble lie.

In other words, formalism--the view that the formal legal materials typically play a decisive role in deciding contested cases--can give judges cover to take the actions needed to stand up to authoritarianism. And conversely, legal realism--the view that the formal legal materials are typically under-determinate in contested cases, especially in apex courts with control over their own dockets and the power to overrule past precedents--could undercut judges' ability to reject authoritarian actions as unlawful. Here is how I put the hypothesis that I explore in the lecture:

Whatever its defects in ordinary times, legal formalism is a useful tool by which the courts can resist an authoritarian presidential administration. In saying, in effect, “the law plainly forbids the president’s actions,” courts can deflect the kind of personal responsibility that a legal realist perspective would assign them for their actions and thereby rally public opinion against the president’s misdeeds. The rallying of public opinion is facilitated by the fact that despite over a century of legal realism, most non-lawyers hold naïvely formalist views of law.

I ultimately reject the hypothesis but not necessarily for all of the reasons that readers might think. For instance, even as I acknowledge that the Trump administration is not especially constrained by public opinion, I argue that it is somewhat constrained. For one thing, there is good evidence from political science that even full-on authoritarian regimes are somewhat constrained by public opinion. For another, we have examples of Trump pulling back in the face of sufficiently strong public opposition. He fired Kristi Noem and Greg Bovino in response to public opinion and abandoned efforts to restrict the public’s telephone access to the Social Security Administration after widespread public expressions of dissatisfaction, part of the general public backlash against the DOGE cuts to government programs. He has denied rumors that he is considering firing Pete Hegseth due to the unpopularity of the Iran war as revealed by Tuesday's election results, but such Trump denials often precede firings.

My point is not so much that public support for judicial invalidation of an authoritarian president's actions will lead to their abandonment but that it could. And therefore, if a judicial methodology strengthens public support for rulings against the administration, that methodology could play a role in constraining authoritarianism. Moreover, it is plausible to believe that formalism is such a methodology because we have reason to think the public are formalists. Why? As I say in my lecture, "even judges who have previously expressed legal realist views about the discretion the law affords them speak of the law in formalist fashion when their words will be heard by the general public, as in televised Supreme Court confirmation hearings."

That's anecdotal, to be sure, so in my lecture I canvas the leading empirical studies of public opinion about the Supreme Court, formalism, and legal realism. The picture is somewhat complex but the account I find most persuasive goes like this:

The public’s views of the substantive policy outcomes of cases shape whether they believe the Court to be simply following the law as determined by formal legal materials or deciding on policy grounds with which they disagree. Put differently, the public manage the cognitive dissonance between their formalist instincts and the evidence of their own eyes by supposing that when Justices rule as the public like, they are following the determinate law, but when the Justices rule contrary to the policy druthers of the public it is because the Justices are elevating their own policy druthers over what the public imagine the law to be.

The upshot is that if the general public like the bottom line of a Supreme Court case, they will support it and assume it reflects the law, regardless of the style (formalist or otherwise) in which it is written; if they disapprove, they will oppose the ruling and assume it reflects illicit judicial activism, also regardless of the style in which it is written. Accordingly, neither a judge who sincerely is committed to formalism nor a judge who is a legal realist but writes in a formalist style will be able to win over the public. Hence, formalism does not make it easier for judges to stand up to an authoritarian administration; conversely, therefore, legal realism does not make it more difficult to do so.

Indeed, in the concluding portion of my lecture, I offer a reason to think that the opposite might be true. Drawing on the SCOTUSblog essay I linked above, I explain that the Court's worst decisions in the Trump era have been hyperopic: they aim at addressing future hypothetical problems while mostly overlooking immediate ones. (Hyperopia is the opposite of myopia; one who is hyperopic misses the trees for the forest.) As I've explained before, Trump v. United States, the immunity ruling, is the sharpest exemplar. Both during the oral argument (in questioning by Justices Alito and Gorsuch) and in the final opinion (authored by Chief Justice Roberts), the Court focused on future risks, such as a cycle of political prosecutions of former presidents creating an incentive for presidents to hold on to power (Alito) and the over-deterrence of decisive presidential action for fear of criminal liability (Roberts). There's nothing wrong with considering the potential precedential effect of a ruling, but in Trump v. United States and other cases I discuss in the lecture, the Court did so while paying insufficient attention to the harm that was being done in the here and now.

I then suggest that a commitment to formalism may induce hyperopia. How? Here's how I put it in the lecture:

A Justice who believes that formal legal materials are generally determinate will, when facing a question as to which the pre-existing formal materials are relatively under-determinate, focus on crafting a forward-looking rule that will not misfire. To do so will require considering a range of hypothetical cases in which the rule might misfire. The case before the Court will merit some consideration but not necessarily more than those potential future cases.
In other words, belief in the determinacy of legal rules will lead formalists both to ascribe most of their decisions to pre-existing rules and, when they need to decide a case of first impression, to formulate a rule. To reduce the risk that such a rule will be over- or under-inclusive, the formalist judge will consider a wide range of hypothetical cases, thus downplaying the importance of the particular case before the court. Hence, formalism induces hyperopia.

To be clear, I am describing a tendency, not a certainty. Moreover, I do not rule out the possibility that the main reason the Supreme Court has responded tepidly to the menace Trump and Trumpism pose to constitutional democracy is that most of the conservative super-majority either don't perceive the menace or are sympathetic to Trump's agenda. I offer my observations about the relations among legal realism, formalism, and hyperopia as a charitable and relatively benign account of the Court's decision making in the age of Trump. I do not contend it is causal.

Finally, I note that the foregoing roughly 1400-word account of my lecture is a bare-bones summary from which I've omitted a great deal of detail and nuance. The lecture as I shall deliver it is nearly five times that length. Counting footnotes, the version that will be published next year in the Florida State Law Review is nearly twice the length of the oral version. I'll post a link to that version on SSRN when it's ready, probably in a few weeks.

-- Michael C. Dorf

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

2026-11-05T17:51:11.678-05:00

Having indulged in a bit of non-pessimism in yesterday's column, I want to get back to reality today with a serious question.

Pop quiz: What do Chuck Schumer and Hakeem Jeffries stand for?

Seriously, I wonder how many people reading this column -- or even how many people in the entire world -- could answer that question with any confidence at all. Could anyone? These are two of the most prominent people in the US government, men who have made it clear that they will try to retain their top leadership positions in the newly Democratic Party-controlled houses of Congress, but other than being "against Trump" or "for Democrats," has anyone ever heard them say what are they actually in government to accomplish?

Beyond the occasional generalities and platitudes ("improving people's lives," "a peaceful world," "restoring decency to the government"), I can honestly say that I never-have-I-ever heard either man even hint at would amount to something resembling a governing vision, or as much as a fraction of one. Donald Trump once said that he has "concepts of a plan" to fix the health care system. Does the power couple henceforth to be known as Schuffries have even that?

Certainly, plenty of people have a very clear, cynical, accurate idea of what both men truly stand for at the end of the day. I know I do. What Schuffries would describe as "centrism" or "moderation" or "realism" always boils down to telling people not to get their hopes up, not to expect Democratic leaders to lead, not to do anything except what the party's establishment and donors want.

As I wrote in Part 2 of a two-part column over the summer, the heirs to Bill Clinton's disastrous triangulation strategy are still in charge of the Democratic Party, and their view of the world was summed up with devastating accuracy in Henry Burke's column in The American Prospect, "Centrists: Better Things Aren’t Possible: Third Way’s strategy session for Democratic moderates lacked any vision other than a hatred for progressives." Burke described how the self-labeled centrists are in fact in the business of pushing the Democratic Party to the right, not the center, and they have been at it for decades.

I could go on for days about this, but instead I invite readers who want a deeper dive into the cabal that backs Schuffries to look at that two-part column, which I pointedly titled: "Now We'll See Whether the Democratic Establishment Truly Cares About Democracy." I chose that title because I wrote the column immediately after Abdul El-Sayed won his primary against the Democratic establishment's hand-picked candidate for the open Michigan Senate seat, and I honestly wondered whether those guys could ever allow themselves to support now-Senator-Elect El-Sayed.

The answer turned out to be: tepidly, at best, until it became clear that he would win. But sometimes, not even that. Even six days ago, New Jersey's long-serving Democratic Senator Cory Booker -- who flies under the radar as an establishment hatchet man, but that is what he is -- went on TV and refused to endorse El-Sayed. So the leadership of the opposition party, the same leadership that was piously telling everyone that Republicans needed to be pushed out of power to save our democracy from ruin, thought it more important to all but shun a popular, charismatic outsider who does not support their cramped agenda, even if his loss had stopped the party from retaking the Senate. Who truly cares about democracy, again?

Before going on with my return to pessimism, I should take a moment to note one very positive implication of the election results that I failed to mention yesterday: John Fetterman will continue to be irrelevant. That is, the nominal Democrat from Pennsylvania, who has shocked his former fans by becoming a loose, Republican-friendly cannon (and who is not even interested in doing his job), could have become the new obstructionist if the Democrats had not been so successful in piling up Senate wins.

That is, it would have been easy to imagine a 51-49 Democratic majority held hostage by Fetterman's whims, and even though he has denied that he plans to switch parties, the very threat of his doing so would have been enough to make the reign of error by Krysten Sinema and Joe Manchin in the first two years of Joe Biden's presidency look sane. Or, as the largest newspaper in Fetterman's own state put it: "Democrats ‘Fetterman proofed’ the Senate with wins in longtime red states, Pa. senator's critics say."

So that is a bit of extra good news that I did not include in yesterday's column. I would have been very concerned if Fetterman had not been neutered. (Yes, that is a gratuitous Susan Collins reference.)

But back to the threat to the country posed by the establishment of Fetterman's party, an establishment that receives the benefit of support from a large number of powerful people. Going back to the pop quiz at the beginning of this column -- What do Chuck Schumer and Hakeem Jeffries stand for? -- here is one of the more cynical, accurate answers that I can offer: The New York Times knows perfectly well what Schuffries truly stand for, and that newspaper definitely is in the tank for both of them.

Why do I say that? The Times has shown again and again that they are fully behind the do-nothing, take no risks, you-kids-get-off-my-lawn approach to dealing with liberals and progressives. In yesterday's edition, they ran an article that was presented as news but was in fact unbridled editorializing/wish fulfillment: "Moderate Democrats Increase Their Numbers, and Their Clout," with the sub-headline: "Victories by moderates in competitive or Republican-leaning states and districts paved the way for large new Democratic majorities likely to be shaped by their priorities."

The article began by predicting that Schumer and Jeffries will be leaders of their caucuses ("would-be," "presumptive,"), as if that were a done deal rather than very much an argument to be had. But the key point is that The Times continues to peddle the Schuffries crowd's fundamental lie, which is that progressives are impractical, weird, and will alienate Real Americans (tm). For example, we find this toward the top of the piece:

[T]he path to Democrats’ sweeping victory this week, when they seized control of both chambers of Congress, was paved overwhelmingly by moderates who had spent months persuading voters in Republican-leaning states and competitive congressional districts that they could be trusted to govern and would deliver dissatisfied voters a practical alternative to President Trump.

You see, those others -- the dastardly non-moderates -- cannot be trusted to govern. The so-called moderates are the adults in the room, because "[t]hey promised to lower costs, improve health care and restore trust in government, not necessarily to deliver the sweeping transformations championed by the party’s ascendant liberals." Plus, "the arrival of more moderate Democrats could strengthen [Jeffries's] hand in setting an agenda focused on economic relief and achievable legislative victories." The article quotes one of those self-styled centrists saying how important she is, and then it adds this bit of obvious editorializing:

Many of their newly elected members have already made clear that they expect Democrats to pursue achievable results rather than sweeping ideological ambitions. And given the scope of Democrats’ majority in the House, the relatively smaller bloc of left-wing members may be limited in its ability to insist that its priorities be met.

Oh brother. Has The Times (and I am ascribing this to the newspaper's leadership, not merely the two dutiful reporters whose names appear on the byline) not noticed that it is progressives who want "achievable results" and are trying to "deliver dissatisfied voters a practical alternative to President Trump"? There is even a funny nickname for practical-minded leaders from the Democratic Socialists of America -- Sewer Socialists -- which is playfully literal, describing politicians who want to fix things like roads, sewers, schools, and so on. Has The Times never heard of that? Oh wait, it has, but that is evidently so five months ago.

Arguably, the most famous of those progressives is New York's Mayor Zohran Mamdani, who has built his mayoralty around delivering practical results. His unexpectedly engaging social media videos even show him personally filling potholes. Yes, those are PR events, but the point is that Mayor Mamdani's PR is built upon the most basic of achievable results, not "sweeping transformations championed by the party’s ascendant liberals," whatever those transformations are thought to be.

Indeed, Mayor Mamdani posted a very short (one minute, 20 seconds) video yesterday that spoke directly to this issue of immediacy and practicality, pointedly titled "It's Morning Again in America." Here is a full transcript:

Last night's election proved working people expect more from their government, and they're tired of waiting. J.D. Vance asked for a couple more years to finally fulfill the promises he'd made to our country. Working people can't afford another two years to make rent that's due this month, child care for their kids, or groceries for their family.

People are tired of being told that there isn't enough to go around while Elon Musk becomes the world's first trillionaire. They are tired of being told to sacrifice their land and water for data centers. They're tired of being told their needs are unrealistic by politicians who've been bought by the wealthiest people on the planet. They're tired of being told to ask for little and expect even less.

And last night, the people stood up. They stood up to politicians that spend their taxpayer dollars on war crimes and genocide instead of on building schools and paving roads. They spoke louder than the hundreds of millions of dollars that tried and failed to buy this election. They demanded an end to the affordability crisis that has become one of the few things that unites us all.

It is not enough to simply win power. We must use it. And the American people will know the difference between hollow words and hard work. For years we've had the debate. Now, it's time for us in the Democratic Party to deliver. My friends, it's morning again in America.

Does that sound like someone who is ignoring practical issues in favor of some unspecified (but apparently utopian, or perhaps even sinister) "sweeping ideological ambitions"? Whatever one might think about Mamdani's particular policy choices, this is not a man who has been tilting at windmills.

More importantly, the Schuffries crowd will continue to do exactly what Mamdani said they do: tell their own voters "to ask for little and expect less." And they will, as always, cloak it in terms of being realistic.

For example, Paul Krugman suggested this morning that Democrats "should offer legislation immediately restoring the Affordable Care Act subsidies that Trump and his allies killed, leading to soaring premiums for health insurance and plunging enrollment." And what will the so-called moderates and centrists in the party say? Oh no, that is too expensive. Think of the deficit! How about paying for it by repealing some of the Republicans' regressive tax cuts? Good lord, do you want people to think we're in favor of increasing taxes? I would bet on this, because that litany of excuses is their playbook.

Perry Bacon, a former Washington Post columnist, has a new piece in The New Republic: "Liberals Must Fight The New York Times’ Monopoly Too: The paper’s editorial vision is out of step with the robust liberalism needed today." He is not wrong.

In short, having enjoyed a few moments of afterglow yesterday, reading that NYT article brought me back to reality today. Unfortunately, there is a built-in PR machine pushing this depressing "We don't dare to be seen as too daring" message from the Schuffries establishment. If yesterday was a day for non-pessimism, today is the day to remember that the people who actually lead the Democratic Party have no vision, no goals, no reason for being. They simply serve the rich donors who want us all to believe that better things truly are not possible. And The Times will always be right there with them, presenting their empty message as news.

- Neil H. Buchanan

Is This What Non-Pessimism Feels Like?

2026-11-04T16:59:58.349-05:00

With headlines like "Democrats Rout G.O.P.," "Democrats’ historic rout was fueled by massive voter swing to the left," and "US voters rebuke Trump as Democrats win control of Congress in ‘blue wave’" filling the news feeds today, surely things are looking up.

And they are, kind of. Before I get back to being an Eeyore, however, please allow me a moment of joy, followed by an explanation of why I am choosing to lead today's column by talking at some length about one particular Senate seat:

Good riddance, Susan Collins!

There are obviously bigger stories going on right now, but we also deserve to luxuriate in some smaller pleasures. And the long-overdue forced departure of the walking affliction whom Jennifer Rubin correctly described as "the disingenuous Trump flunky Sen. Susan Collins" certainly qualifies.

In 2009, the economy was reeling from the Global Financial Crisis and informed people were genuinely worried that the US economy could move from what we now know as the Great Recession into a full-blown global depression. We needed a major fiscal stimulus package, but Republicans were hellbent on stopping newly-elected President Barack Obama from presiding over a robust recovery. Right on cue, Collins and fellow Maine Republican and right-wing Nebraska Democrat Ben Nelson connived to be the "high-stakes deal makers" who doomed the American people to agonizingly slow growth for years afterward by making sure that the stimulus bill would be too small. All in the name of being sensible, middle of the roaders.

I emphasize that faded moment of ill-repute only because Collins's more recent inanities have been so well documented. Her vote to acquit Trump in his first impeachment trial was, she explained, justified because he had "been impeached[, and t]hat's a pretty big lesson," adding when pressed that "I believe that he will be much more cautious in the future." That was soon followed by a pathetic attempt at a walk-back that still leaves me slack-jawed. And the less said about Collins and abortion rights -- particularly her gullibility/dishonesty in voting to confirm Brett Kavanaugh, for which she claimed this year to have "no regrets" -- the better.

Even so, just three weeks ago the headline writers and editors at The New York Times approved this sub-headline at the top of an article about the Maine stain: "The race in Maine, which could decide Senate control, is testing whether there is still room for Ms. Collins’s brand of moderation during a sharply polarizing presidency." If Collins is a moderate, then Vivek Ramaswamy's campaign was a way to highlight women's issues. (And speaking of The Times, their decision to make a big splash with a story from Alaska that should have been, at most, a "Here's a ploy that both parties have used over the years" side note, shows that they are as obtuse as ever. But they're so evenhanded!)

But enough dancing on this one political grave, especially when there are so many others on which to cha-cha, to which I will return at the end of this column. The larger question coming out of the election is whether pessimists like me need to drink some happy juice and get over it. As recently as last week, I wrote this:

Next Tuesday, and most assuredly for several months thereafter, the wheels of America's creaky constitutional democracy will -- through elections and a gazillion legal challenges thereto, all of which could be upended by military and paramilitary violence -- determine whether or not the Democratic Party will become the majority party in one or both houses of Congress. And even if the Democrats ultimately take control, we will then have to wait and see whether Donald Trump will simply defy them at every turn.

It is not a great situation to be in, but given how much worse I have long thought things would be by now, this is beyond the top of the range of possibilities that seemed possible only a year ago. None dare call it optimism, but it is in the same area code.

There must surely be a vegan version of "eating crow," but whatever it is, I definitely am in for a heaping helping.

True, there is no guarantee that Trump's apparent equanimity about the thumping will last, and there is every reason to imagine that some post-election insanity will yet play out. Yet the results do seem to have demonstrated that I have been wrong many times in saying that no loss -- no matter how numerically decisive -- would stop Trump and the Republicans from committing a coup. That counts as good news, right?

But even with many of the worst-case scenarios having fortunately been unrealized -- no swarms of ICE agents or US military harassing voters, no violence from right-wing paramilitaries, no immediate claims that even clearcut victories for Democrats are fraudulent -- there are still many things to worry about.

The most obvious of these is that, as I put it in the block quote above, "we will then have to wait and see whether Donald Trump will simply defy [the new Congress] at every turn." Even if he does not contest the results, he still can have the Executive branch simply refuse to do what the law requires. The MAGA-friendly supermajority on the Supreme Court seems unlikely to do anything but throw a few low hurdles in his way.

More immediately, my first post-exultation thought after seeing the results was something like this: "Oh damn, what will the Republicans try to pull in the lame duck session?" Having only a few weeks remaining of trifecta power, what will they dream up to inflict on the country on their way out the door? After all, Republicans in both Wisconsin (2018) and North Carolina (2016 and again in 2024) responded to losses in gubernatorial elections by having their legislative majorities join with outgoing Republican governors to strip the incoming governors of important powers, with North Carolina's governor's powers now described as "the nation's weakest."

The roles are now reversed -- the Republican legislative majorities are (thankfully) on the way out, while their chief executive (cursedly) remains -- but the playbook is the same, which is to strip powers from Democrats. The possibilities seem limitless. Ram through a slew of unhinged MAGA federal judges? Pass a law that allows a president to impose tariffs on anything for any reason? Double the size of ICE? Change the laws that protect criminal defendants, federal employees, immigrants, and national monuments? You name it, they might try it. The only question is how much damage they can do in the limited number of legislative days available.

But perhaps we will be saved if some of the supposed "non-extreme" Republicans refuse to play along. You know, those statesmen -- Bill Cassidy, John Cornyn, and Thom Tillis -- who caved and confirmed Todd Blanche as Attorney General (even after they had been taken down by MAGA forces). But hey, I hear that Susan Collins is a moderate!

And then there is the more general worry that the Democratic leadership will revert to form and disastrously underplay their hand. Even the never-Trump Republicans at The Lincoln Project jumped on this right away, posting a short video this morning with subtle advice to the Democrats: "Don't fuck it up." The end of the video gets it exactly right, ending with a repetition of their vulgar-but-essential advice: "Democrats, you didn't win because American wants you to meet domestic terrorists and criminals halfway. Forget bipartisanship. This is a time for courage, not compromise. History is watching. America is waiting. Don't fuck it up."

Will they? If the new majorities in Congress keep Chuck Schumer and Hakeem Jeffries in charge, that will be a bad start. This is a party leadership, we should remember, that brought us Joe Biden and Merrick Garland's brand of "not dwelling on the past." That did not turn out well, I think we can agree.

And now for a curveball: What about the debt ceiling? Under the new configuration of power in Washington, it is the Democrats who would be able to try to bring the country to the brink of a constitutional and economic crisis. Republicans, when they held a majority in either house while Obama and Biden were in the White House, threatened not to increase the debt ceiling unless the Democrats gave them whatever was on the conservative wish list du jour. Would Democrats do the same when the debt ceiling is again looming next Spring or Summer?

I certainly hope not, no matter how much I want Democrats to play hardball. Some things are simply insane. Shutdowns? Sure, reluctantly but as needed. But debt crises? Heck no.

We have been there too many times. I cannot speak for Professor Dorf, but I can say that I almost surely lack the energy to go through yet another round of explaining to people how the debt ceiling works, a president's options if the debt ceiling is reached, and all that jazz. It would, moreover, be even more difficult next time, because intellectual honesty would require us to say that the Democrats were out of line.

But beyond my personal reasons for hoping that it does not come to that, the debt ceiling is simply not what the Democrats should be thinking about. Luckily, I think that even the leftier people in the party know this. They, unlike the people who lost their seats yesterday, are not hostage-takers. Even so, the very possibility that this will come back to life is going to give me nightmares, as it should for everyone reading this.

But back to the non-pessimism theme. Mike Lawler, who lucked into a NY congressional seat and comically decided that he was a statesman, appears to have lost handily. Ken Paxton will not be a US Senator. Abdul El-Sayed won easily, and Haley Stevens self-immolated. Darline Graham somehow managed to lose her borther's former seat from blood-red South Carolina. Even Lauren Boebert might be on her way out. Meanwhile, Texans elected a Democratic governor, making it a slightly less scary state.

Still, it is clearer than ever that I was smart to leave Florida.

- Neil H. Buchanan

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

2026-11-03T07:00:00.000-05:00

Today is Election Day. If I lived in a state in which elections are conducted primarily by mail, I almost certainly would have mailed in my ballot rather than attempted to vote in person. New York State is not such a state, although I have sometimes sought, received, and returned an absentee ballot. Effective a couple of years ago, New York has both absentee ballots--for which an excuse is required--and "Early mail" voting--for which no excuse is required. For either, one must request a mail-in ballot. Unlike some states, New York does not simply mail every registered voter a mail-in ballot. New York also has early in-person voting.

If I lived in a district in which one can expect long lines at the polls, I certainly would have voted early. However, in the 18+ years I've lived in Ithaca, I've never had to wait more than a minute or two to vote at my local polling place (sometimes an elementary school, this year the lobby of a retirement home). And because there are more polling places open on Election Day than for early voting, it's actually more convenient for me to vote on Election Day.

Moreover, voting on Election Day creates a sense of civic participation and community. I'm not saying there's anything wrong, unpatriotic, or less satisfying of one's civic obligation in voting by mail or early. I am saying that there is something of a valuable secular ritual in voting on Election Day in a jurisdiction in which there are no obstacles to doing so.

Donald Trump's years-long attack on voting by mail is cynical (and hypocritical, given that he himself votes by mail). During the COVID pandemic, more Democrats were likely to vote by mail than Republicans were (because Democrats were more likely to worry about becoming infected), so Trump attacked voting by mail as a means of undercutting Democratic voting. He persists in the attacks because he continues to perceive partisan advantage.

It is possible for motivated actors to promote a policy for one set of reasons while appealing for support based some other set of reasons. I suspect that is part of what's going on with respect to mail-in voting. To be sure, some number of rank-and-file Trumpists and other Republicans oppose voting by mail (except for members of the military and perhaps other constituencies likely to vote Republican) for the same reason that Trump and party leaders do: they think such restrictions will suppress Democratic votes. Some other Trumpists and Republicans may oppose mail-in voting because that is simply the position that they have been told is the view of their team. They thought cryptocurrency was a scam when Trump said it was a scam; now that he's all in on crypto, they support it too. For this group, Oceania has always been at war with Eastasia.

But I also suspect there are some people to whom the anti-vote-by-mail position appeals on the merits. Some of these people might buy the anti-fraud argument, which is terribly weak but only as an empirical matter. In principle, it does seem like it would be easier to vote illegally or fraudulently via mail than in person. But in fact there's no evidence that mail-in voting increases the very low risk of individual-level voter fraud. And that's almost certainly because, no matter whether it's done by mail or in person, individual-level voter fraud is just an incredibly stupid way to try to steal an election. It requires coordination among numerous individuals, each of whom risks felony prosecution for their actions.

However, I wonder whether there might be a further appeal to the attack on voting by mail. Although people have long accepted the notion of absentee voting, in the minds of many, the paradigmatic act of voting involves pulling a lever or filling out a ballot on Election Day--just as it does for me. For these people, when Trump or someone else attacks mail-in voting, they may hear an appeal to tradition or civic virtue. Even if they don't think that mail-in voting is likely to lead to any appreciable voter fraud, they may nonetheless regard it as detracting from a civic obligation, as if people who vote by mail (absent a good excuse of the sort that would traditionally have qualified them for an absentee ballot) are shirking in the same way as someone might shirk jury duty.

That comparison is by no means chosen at random. Traditionally, the right to serve on a jury and the right to vote were both seen as core political rights, both unusual in our constitutional scheme in that they were restricted to citizens.

None of that is to say that states should not make voting by mail (or early voting) an easy option. Nor is it in any way to excuse President Trump's cynical attack on mail-in voting and just about every other element of constitutional democracy insofar as it produces results he dislikes. As the mailer I received from the New York Democratic Senate Campaign Committee (reproduced here) notes, "voting by mail is a safe, legal option in New York."

As well it should be. My flexible schedule and the fact that I'm lucky enough to live in a place with very short lines at the polls makes it easy for me to vote in-person on Election Day. But many people have work or family obligations, physical challenges, or other reasons why getting to a polling place either on Election Day or on an early-voting day is not practical. There is no reason why they should not be able to participate in the civic exercise of voting via the mail.

-- Michael C. Dorf

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

2026-11-02T07:00:00.000-05:00

St. Mary Catholic Parish ("St. Mary") is a private school in Denver, Colorado that openly discriminates against LGBTQ families. Because St. Mary is a private school, nothing in the Constitution forbids it from admitting whomever it pleases or requiring its students and families to adhere to its religious teachings. And nothing in this blog post should be interpreted by anyone to suggest any justification for coercive governmental intervention into the discriminatory policies of St. Mary or any other private religious school (unless the school accepts public money).

But what St. Mary does on its own dime is different from how the government spends taxpayer dollars. Yet tomorrow, St. Mary will argue to the United States Supreme Court that Colorado violated the Free Exercise Clause by excluding it from a state-wide program that provides public money to participating pre-schools. Colorado law requires schools that want the state's money to agree not to discriminate on the basis of a number of characteristics including sexual orientation. St. Mary does not deny that it discriminates on that basis but claims it has a constitutional right to the grant money because the Colorado requirement discriminates against it on the basis of religion in violation of the Free Exercise Clause.

In this post, I will make two separate arguments. First, even though as a private religious school St. Mary may be shielded to some extent from some laws that forbid discrimination in admissions, discriminating on the basis of sexual identity and sexual orientation is morally wrong and the school should be condemned for doing so. Discrimination based on faith is still discrimination, and the wrong does not become right simply because the discrimination is based on faith.

Second, as a constitutional law matter, Colorado has every right to to condition its grant of taxpayer funds on a promise not to discriminate on the basis of characteristics such as race, gender, and sexual orientation. But for the recent non-originalist jurisprudence of the Roberts Court using the Free Exercise Clause as a super-charged weapon to promote religious values, this case would not be in doubt.

Tragically, St. Mary will likely prevail, and Colorado will have to decide whether to use taxpayer funds to subsidize anti-LGBTQ discrimination or end its worthy program of helping families better afford pre-school education. Nothing in the Constitution's text or history supports putting the State to that difficult choice.

St. Mary does not want to accept pre-school children whose parents are same-sex couples because doing so is inconsistent with the anti-LGBTQ tenets of the Catholic Church. St. Mary may well be entitled to exclude such children when acting purely on its own. But the fact that the school may have the right to discriminate in this manner does not mean that it should do so or that it should not be criticized for doing so.

Long ago, I wrote an article for the Daily Beast arguing that major faiths that do not allow women to hold leadership roles have every right to make that choice, but that that choice does not make the discrimination less pernicious. The same is true here.

St. Mary is telling the world that it views same-sex couples and their young children as not worthy of admission. It does not matter whether the parents are devout or follow all other Catholic principles. They are not welcome because of who they are and who they love. That judgment is morally wrong and should be condemned. Yet, no one tomorrow, not even the State, is likely to make that observation, and that is tragic. Right and wrong should still matter even if the wrong is based on religious faith.

St. Mary may also be entitled exclude all people of color from its school when acting purely on its own. It would also be allowed to loudly proclaim that judgment to the world over and over, as many religious institutions did during segregation. If it did so, I would hope that its value judgment would be roundly condemned (despite its legality) by everyone. Overt and hostile anti-LGBTQ discrimination should meet the same fate.

As a constitutional law matter, the Colorado statute governing this case has absolutely nothing to do with religion. It does not single out religion for special or negative treatment, nor does it require any school to abandon any religious practice or exercise. According to the state's brief:

Colorado does not regulate or restrict preschools’ religious curricula or worship. Participating faith-based preschools remain free to teach their faith while receiving public funding. In concrete terms, this means that Catholic schools participating may teach their religious views on sex, marriage, gender, family, and any other topic. But [Colorado] does not allow any publicly funded preschool to exclude children who wish to enroll in the school simply because their parents are gay (to take one example).

[These] efforts to include religious preschools have succeeded. More than forty faith-based providers—including six Catholic Charities preschools that are part of the Archdiocese of Denver—participated in [the program's] inaugural year.

Under any reasonable analysis of the entire First Amendment (including the now all but judicially repealed Establishment Clause), Colorado should have the right to condition public money on the grantee agreeing not to discriminate on the basis of race, gender, or sexual orientation. There was a time (not too long ago) when the Establishment Clause would have prevented public money from going to religious schools at all, with a few exceptions such as grants to decrease the costs of secular textbooks. I argued both in court and in my scholarship that those decisions were wrong and overread the Establishment Clause. Eventually, the Court moved to my position and held that all secular aid that was available to non-religious private schools could be provided to religious schools if the state chose to provide it.

But the Roberts Court has gone much further, transforming the issue from what aid the government may give to religious schools to what aid the government must give to religious schools. As I've written before:

What was once an impermissible choice under the establishment clause, and then an allowable decision under the establishment clause, is now a mandate under the free exercise clause. This shift reflects the Roberts Court's belief that local and state governments must lower the wall of separation whether they want to or not. This change in the law ignores precedent, common sense, and most importantly, federalism concerns pertaining to local decisions over local issues.

In a trilogy of cases where states wanted to exclude religious schools from generally available government aid programs, the Roberts Court held that the Free Exercise Clause is really a Free Exercise Super Equal Protection Clause that prohibits the government from discriminating against religion in the school aid context. Those cases were wrongly decided because they ignored legitimate Establishment Clause and federalism concerns. But at least they involved laws that explicitly made a distinction between religious and non-religious schools.

The Colorado program makes no such distinction, and many religious schools participate and receive the money while signing the non-discrimination pledge. Colorado is not in any way discriminating against religion. It is discriminating against all entities that themselves discriminate on the basis of race, gender, and sexual orientation. If this case involved race or gender, the outcome would be obvious. Again, although St. Mary is allowed to oppose this law as forcefully as it opposes treating same-sex couples and their pre-school children with dignity and compassion, it should not be allowed to dictate to Colorado how it spends it taxpayer dollars unless Colorado itself is discriminating on the basis of religion. But Colorado is doing no such thing.

There are doctrinal complexities in the case that will receive much attention tomorrow, such as whether this law is truly generally applicable and whether a prior landmark Free Exercise case should be reversed. But that will be just noise. Colorado should be allowed to condition its grant programs on the promise of the grantee not to discriminate against marginalized groups--period, full stop.

An analogy may be helpful. Colorado is allowed to condition public money for private schools on the condition that various educational objectives are agreed to by the recipient. For instance, an aid program could be conditioned on the schools' willingness to teach math or geography at certain levels. Similarly, the teaching of science/evolution could be required as a precondition to schools receiving taxpayer dollars. A religious school that does not want to teach science/evolution should not be able to dictate to Colorado that it change its standards to accommodate that school's deviation from required secular educational requirements.

But that is exactly what St. Mary is trying to do in this case, except the secular standards concern admissions, not curriculum. And St. Mary will almost certainly prevail, which reveals how far the Roberts Court is willing to go to impose its religious values on all fifty states.

To prevail in a Free Exercise suit, the plaintiff must show that its ability to freely exercise its religious beliefs must be substantially burdened by the law at issue. Therefore, what St. Mary is really arguing is that it is not just a burden but a substantial burden for it to admit children of same-sex parents. Again, the school may be entitled to exclude such students when acting purely on its own. But the argument that preventing it from doing so would substantially burden its religious exercise should be seen for what it is: a strong statement that what the school stands for would be harmed by the very presence of pre-school children of same-sex couples. That pernicious belief should be condemned by fair-minded people and also constitute legally disqualifying behavior for inclusion in an important program designed by the State to help all children and their families regardless of who the parents choose to love or marry.

-- Eric Segall

The Root Causes of the Two Dan Sullivans Problem

2026-10-30T09:33:31.874-04:00

Yesterday I was on SiriusXM with Dan Abrams, who has a law and politics podcast, talking about the two Dan Sullivans issue in Alaska and related issues. He was more focused than I would have chosen to be on the possibility of criminal prosecution but it was an otherwise useful conversation. It's now available via YouTube either by clicking this link or watching below.

Meanwhile, I created a little graphic to explain how the problem of same-name candidates emerges, given that it would be simple enough to prevent this sort of thing with a high threshold for ballot access in a two party system. (I "created" the graphic in the sense that I generated all of the steps and the text, but I used Claude to turn it into a graphic.) Here it is:

Why Alaska's System Invites Same-Name Candidates

Why Alaska's system creates an incentive for same-name candidates

A chain of fixes, each solving one problem while opening the door to the next, ending with a tactic like running two candidates named "Dan Sullivan."

Polarized nominees Jungle primary & its risk Alaska's fix The loophole Historical note

flowchart TD
  n1["1. FPTP elections + Duverger's Law drive a two-party system"]
  n2["2. Primary turnout is low and skews toward the most engaged voters"]
  n3["3. Rising polarization pulls each party's primary electorate further left or right"]
  n4["4. Nominees land left of center (Dem) or right of center (GOP)"]
  n5["5. States adopt jungle primaries to pull nominees back toward the center"]
  n6["6. Top-two jungle primaries risk a vote-split lockout, e.g. early in CA's 2026 governor's race"]
  n7["7. Alaska's fix: a top-four primary"]
  n8["8. Top-four creates a general-election splitting risk: incentive to run '1 of ours + 3 of theirs'"]
  n9["9. Alaska's fix: ranked-choice voting"]
  note79["Adopted together in one 2020 ballot measure, not as two sequential fixes"]
  n10["10. Low-information voters often don't rank; they just vote for one candidate"]
  n11["11. The incentive survives: engineer a ballot where those voters waste their vote"]
  n12["12. Tactic: run a same-name candidate, e.g. two 'Dan Sullivan's in the 2026 AK Senate race"]
  n13["13. Partial fix: ballot labels showing party + 'Incumbent' — weakest on the lowest-information voters"]

  n1 --> n2 --> n3 --> n4 --> n5 --> n6 --> n7 --> n8 --> n9 --> n10 --> n11 --> n12 --> n13
  n7 -.- note79
  note79 -.- n9

  classDef phase1 fill:#bfdbfe,stroke:#2563eb,color:#1e3a8a,font-weight:600
  classDef phase2 fill:#ddd6fe,stroke:#7c3aed,color:#4c1d95,font-weight:600
  classDef phase3 fill:#bbf7d0,stroke:#16a34a,color:#14532d,font-weight:600
  classDef phase4 fill:#fed7aa,stroke:#ea580c,color:#7c2d12,font-weight:600
  classDef note fill:#f3f4f6,stroke:#9ca3af,color:#374151,stroke-dasharray: 4 4,font-style:italic

  class n1,n2,n3,n4 phase1
  class n5,n6 phase2
  class n7,n8,n9 phase3
  class n10,n11,n12,n13 phase4
  class note79 note

Phase 1: the problem polarization creates

Duverger's Law

First-past-the-post elections mechanically favor two dominant parties.

Primaries attract the most engaged

Primary turnout is a fraction of general turnout, and skews toward voters who care most.

Polarization sharpens the skew

As the parties pull apart, those highly engaged primary voters skew further left (Dem) or right (GOP).

Off-center nominees

Each party nominates someone to the left or right of the general-election median voter.

Phase 2: a fix, and a new risk

Jungle primaries

States let all voters choose among all candidates regardless of party, aiming for more centrist nominees.

Top-two lockout risk

If one party fields more candidates than the other, it can split its own vote and get locked out of the general, a risk that was present early on in California's 2026 's race.

Phase 3: Alaska's combined fix

Top-four primary

Alaska advances the top four vote-getters instead of two, reducing the lockout risk.

...but now the general can split too

With four candidates in the general, each party has an incentive to engineer a field of "1 of ours, 3 of theirs" so its own vote doesn't split.

Ranked-choice voting

RCV is meant to neutralize that splitting risk, since voters can rank rather than pick just one. Important nuance: Alaska adopted top-four and RCV together, in a single 2020 ballot measure; RCV wasn't a later patch for a problem top-four created on its own; it was designed in from the start to handle exactly this.

Phase 4: the loophole that remains

Low-information voters don't rank

Many voters mark only a first choice, effectively voting as if it were plurality, not RCV.

The incentive survives

Because bullet-voting reintroduces vote-splitting risk, parties still have reason to engineer a ballot that causes the other side's low-info voters to waste their vote.

Same-name candidates

One way to do it: recruit a candidate who shares a name with a better-known opponent, as with the two candidates named "Dan Sullivan" in Alaska's 2026 U.S. Senate race.

Ballot design, a partial fix

Labeling a candidate's party and "Incumbent" status helps, but least for the very low-information voters the tactic targets, since they're also the ones least likely to know what "incumbent" means or that they're supposed to rank.

Note on timing: steps 7 and 9 are drawn as sequential in this chart because that's the logical relationship: a top-four primary needs something like RCV to manage the general-election splitting risk it introduces. Historically, though, Alaska adopted both pieces at once, via a single 2020 ballot measure (Ballot Measure 2), not as two separate reforms where one was passed to fix a problem the other had already created.

-- Michael C. Dorf

Twenty Years On, It's Still About Sentience

2026-10-29T07:00:00.000-04:00

Yearly on this blog, Professor Buchanan writes a "Veganniversary" essay, the portmanteau of his own creation marking another year since he became a vegan. His first announcement of adopting a vegan lifestyle was in July 2008, which was a little less than two years after I became a vegan. I am less able to pinpoint the exact date for me. I do know it was some time in the fall of 2006, meaning that I have recently passed or will soon pass my 20th veganniversary. To mark the occasion, I offer some observations.

When people learn how long I've been vegan, they often say that it must be easier now than it was 20 years ago. That's true in one sense they mean and one that they don't. The sense in which they mean the point is that there are many more items in grocery stores and at restaurants (even in some unexpected places) that are and are clearly marked as vegan (or plant-based) now than there were then. Even so, 2006 was pretty far along in the movement. Donald Watson coined the term "vegan" in 1944. I have friends who have been vegan more than twice as long as I have been. I'm sure they've experienced much greater changes than I have. The biggest change I've noticed has been the proliferation of products that effectively mimic animal-based foods. In 2006, I couldn't find any vegan cheeses worth eating. For the last decade or so, there have been many. This is one of my favorites. Grocery store sales launched in 2017. Beyond Burgers have been available since 2016. Impossible Burgers debuted the same year.

But being vegan is easier for me now than it was in 2006 for an additional reason: I know what I'm doing. For the first several years of my vegan journey I wasn't exactly a junk-food vegan surviving on potato chips and Diet Coke, but I wasn't exactly a health-focused vegan either. As I was exposed to more people in the movement, I discovered what are sometimes referred to as its three main objectives: sparing animals (my initial reason); protecting the environment; and health. (There are other benefits as well, such as the reduction of food insecurity.) As I took on these additional goals, the health focus led me to do much more of my grocery shopping in the produce aisle. If I had been a health-focused vegan in 2006 or, for that matter, 1986, it would have been easy enough to buy fruits, vegetables, and beans. I'm glad the animal-free meat, dairy, egg, and other substitutes are now available for others, but these days I rarely eat them myself.

And the substitutes don't just come from big companies. Here's some hand-crafted vegan nigiri I had last week at a terrific vegan restaurant in Kyoto. It undoubtedly took a whole lot of skill and work to make something that looked so much like fish and seafood, and it tasted great.

But even with minimal training, anyone with modest kitchen skills can make decent-looking and tasty vegan sushi (or pretty much anything). Here's some vegan nigiri that I made using a red pepper, avocado slices, lotus root, and diced cucumber.

And yes, of course, I can also make vegan maki. Thanks for asking.

If I were writing this essay on my tenth veganniversary in 2016, I'd be more optimistic about the trajectory of the movement, but the number of people who are vegan or plant-based has stalled since then at about 1-3 percent of the population (with the uncertainty in the percentage based on a pretty wide variety in the way that survey questions are asked and the unreliability of self-reporting). At the same time, however, the more optimistic people in the movement point out that in the last decade there has been a significant increase in the number of people who aren't vegans but who consume considerably fewer animal products than they formerly did. In strictly utilitarian terms, a sufficiently large increase in the population of so-called flexitarians and reducitarians could result in a greater reduction in animal consumption than would a modest increase in the number of vegans.

In terms of the environmental impact, a reduction in consumption is a reduction in consumption. Likewise, on a population basis, the health benefits of the reduction could be comparable but more spread out. And so far as the impact of animals, well, as a friend of mine likes to say, the animals don't care why you don't eat them. I have heard him say that as a way of welcoming health-focused or environment-focused people into the movement, but it could apply to reductions thanks to flexitarians and reducitarians as well. The average American eats more than 20 chickens per year. If four flexitarian Americans each cut that number by a quarter, that's the same number of chickens not being eaten as if one average American goes vegan. Presumably the 20 chickens don't care whether it's one vegan or four flexitarians who aren't eating them.

All that said, I've never thought about my veganism in strictly utilitarian terms. For me, as for many vegans who became vegan for ethical reasons, it has always been about not wishing to participate in activities that I've come to see as wrong. And for that reason, I'll say that for me the hardest part of being vegan is not the actual being vegan part but the fact that I keep having to have the same conversation--the one in which I answer the questions that Sherry posed for herself (because people were already constantly posing them to her) in Mind If Order the Cheeseburger? And Other Questions People Ask Vegans, published in 2013.

To be clear, in saying that it's hard for me, I don't mean the questions are difficult. Where do you get your protein? Beans, nuts, seeds, virtually anywhere. Don't animals eat other animals? So what? Do you generally model your behavior on what lions do? What about plants? If you really cared about plants, you'd eat them rather than animals, because more plants are killed making animal feed than if you eat them directly. And anyway, there isn't good evidence of plant sentience.

That last answer is the one that has given rise to what I regard as the oddest conversations, insofar as there's follow-up. I know that there's evidence of sophisticated behavior by plants but none that I've seen suggests that they're any more sentient than our own autonomic nervous system or our immune system, which are also capable of sophisticated behavior without any ghost in the machine. But let's put aside the question whether any plants actually are sentient. The odd conversations arise when I encounter people who concede that plants aren't sentient but nonetheless don't understand why I would choose not to eat or wear animal products but that I'm okay eating or wearing plant products. Plants are also alive, they say.

During these conversations, I try to invoke (without necessarily citing) Thomas Nagel's famous essay What is it Like to be a Bat?, putting aside a key point that interested Nagel: the unknowability of a phenomenon such as echolocation without experiencing it. I simply borrow the idea that it is like something to be a bat, a pig, a cow, a chicken, or a fish but (assuming plants aren't sentient, which my interlocutor also assumes during these conversations) it's not like anything to be a carrot, a head of broccoli, a soybean, or any of the whole plants on which those edible parts grow. And then my interlocutor will sometimes express indifference. They don't claim that it is like something to be one of those plants. They simply don't understand why that should matter.

Of course, for this sort of person, aliveness isn't actually a criterion for moral respect. This is someone who eats and wears animal products, knowing full well that they come from animals who were once alive. What they're saying instead is that I have no good reason to draw the line at sentience rather than aliveness, whereas to me it's just sort of obvious that sentience is the more sensible line: If a being has a subjective perspective, if it is "like" something to be that sort of being, then killing that being deprives them of the existence they have experienced and would otherwise continue to experience, whereas killing a plant that cannot subjectively experience anything does not deprive the plant of anything it could miss because, not having a subjectivity, it doesn't experience or miss anything.

I don't want to come across as insensitive to a different sort of perspective. Some people are what I'd call vegans-plus. They don't consume animal products because they agree with us vegans that it is wrong to kill or otherwise seriously harm animals (as is involved in the production of dairy, eggs, fiber, and other ostensibly non-lethal exploitation) without good reason (and there is almost never good reason). But they go further and say it's also wrong to harm plants without good reason. Maybe that's because they believe in plant sentience but it might be because they think that aliveness is the right moral criterion. Such people might be fruitarians (which is not really sustainable absent a great deal of supplementation, and even then, it's not recommended) or perhaps freegans. I'm neither a fruitarian nor a freegan but I acknowledge that there's an ethical argument for these approaches. A freegan isn't exactly a vegan-plus, because a freegan will eat discarded animal products. But if one's motivation for veganism is entirely utilitarian, then freeganism is compatible with that motivation, because it leads to no incremental increase in demand for animal products.

To return to the main point, while I can understand having concern for plants in addition to animals, I don't understand having concern for plants but not all animals. To my mind, this results from a kind of animalpomorphism of plants. And yet, it's a pretty common attitude.

Consider the widespread revulsion at Donald Trump's cutting down of 430 trees in Washington, D.C. to facilitate his vision of a golf course. That was appalling for numerous reasons, including its apparent illegality, failure to consult with local constituencies, misplaced priorities, elimination of habitat for birds, squirrels, and other animals, and the loss of the trees' aesthetic value for residents of and visitors to Washington, D.C. But (unless one believes in plant sentience) it wasn't a harm to the trees themselves. And yet, the vast majority of the people who are rightly appalled by Trump's chopping down of those trees routinely eat animal products that come from animals who surely experienced harm or death to make those products.

I'm all for reverence for nature extending to living things, such as trees, that have no subjective experience of the world. That reverence could be based on the fact that other living beings who are sentient, including humans, derive pleasure or sustenance from the non-sentient living things. It could just be reverence for its own sake. What I don't get--but what I continue to encounter--is reverence for the insensate bits of our wondrous world that doesn't build on a foundation of minimizing harm to the sentient beings who inhabit it.

-- Michael C. Dorf

The Trump DOJ's Incompetence Shouldn't Distract From Its Awfulness

2026-10-28T07:00:00.000-04:00

In President Trump's second term, the Department of Justice has been illegally firing and inducing the departure of many of its best lawyers. Although many competent lawyers remain, those that do are overworked. In addition, they must toe the line laid down by DOJ leadership who are happy to discard generations-old norms of independence to make the department into an instrument of the president's vindictive will. And to partially fill the depleted ranks, DOJ has been lowering its standards and raising the bar on ideological purity. Although that last link points to an article concerning the Civil Rights Division, the problem exists throughout DOJ.

As a result of DOJ's competence deficit, it was hardly surprising to discover that in its two most recent high-profile lawsuits aiming to block states from exercising their constitutional powers to conduct congressional elections, the DOJ committed blunders. I mentioned one of these in passing in my Verdict column yesterday. The column discussed the meritless DOJ lawsuit seeking to preemptively enjoin Alaska from certifying an election winner due to the presence on the ballot of two candidates with nearly the same name. After explaining the substantive flaws with the lawsuit, I added that the complaint DOJ filed

also displays poor lawyerly craft. As Professor Richard L. Hasen noted on Slate last week, the portion of the complaint that seeks injunctive relief omits any “verb specifying what the Trump administration is actually asking a judge to do, which is to issue an injunction ‘blocking’ certification.”

That particular sloppiness is simply sloppiness. If the DOJ's suit against Alaska were otherwise meritorious, a judge would be warranted in construing the prayer for relief as asking to block certification. By contrast, the incompetent lawyering that infected the DOJ's suit seeking an order that California set aside 20,000 mail-in ballots that DOJ asserted were from "likely" non-citizens may well have been dispositive. To see why, I need to go briefly into the procedural weeds.

On October 15, DOJ filed a lawsuit against California and some of its officials, complaining that the state was refusing to comply with its demand to segregate the ballots of the people identified by the federal government as likely non-citizens. Four days later, on October 19, DOJ sought a temporary restraining order (TRO). Its motion stated in bold letters that it was asking for a ruling by November 3, 2026, i.e., Election Day. On October 21, Federal District Judge Carter scheduled a hearing for October 27, promising to rule quickly and certainly before the November 3 deadline that DOJ requested. Hours later (at 9 pm on October 21), DOJ filed a "Request for Expedited Ruling on TRO," stating that it now wanted a ruling by noon the next day.

Noon on October 22 (i.e., three hours into the work day since the filing of the request for expedited ruling) came and went without a ruling from Judge Carter, so the DOJ took the extraordinary step of running to the Ninth Circuit complaining that the judge's failure to rule on its schedule amounted to a constructive denial. In a 2-1 decision, that court rejected the request. The court gave multiple reasons for its decision, but one of them that would have been sufficient by itself was the fact that any emergency was of the DOJ's own making. Why had it asked for a ruling by November 3 only to then say it needed a ruling by noon on October 22?

The DOJ's answer was that the County of Los Angeles had already processed over 300,000 mail-in ballots and was continuing to process ballots--some number of which could be of people on the DOJ's likely-non-citizen list. But, as the Ninth Circuit decision emphasized, that should not have come as a surprise to the DOJ, because California's ballot-processing timing and rules had been public knowledge well before DOJ filed its lawsuit. If the DOJ wanted a ruling before the processing of mail-in ballots started, it should have sued earlier and should not have listed November 3 as the date by which it needed a ruling. DOJ offered no explanation for its failure to undertake rudimentary research into how elections in California operate. Although there were additional compelling reasons to deny the government's request, the fact that it was claiming the District Judge had somehow unreasonably delayed ruling when DOJ itself was responsible for most of the lost time would have been an independent basis for the Ninth Circuit's decision.

Chief among those additional reasons was the fact that the California case was meritless in pretty much the same way that the Alaska case is. Article I, Section 4 of the Constitution gives states responsibility for the manner of holding congressional elections, subject to override by an Act of Congress. In the Alaska case, DOJ claims that hortatory language in the preamble to the National Voter Registration Act (NVRA) should be construed to impose unspecified requirements regarding candidates with similar names, even though Alaska has taken quite reasonable measures to mitigate voter confusion (and is under no statutory or other obligation to do so in the first place). In the California case, DOJ claims that criminalization of non-citizen voting means California must take whatever steps DOJ thinks appropriate to prevent non-citizens from voting, even though California takes quite reasonable measures to prevent non-citizen voting and even though the federal statute operates on individuals, not states. If ideological consistency, as opposed to fealty to Donald Trump, were the guiding principle of DOJ, it would never have filed these lawsuits, which show utter disrespect for Article I, Section 4 and principles of federalism more broadly.

In the California case, there is also the fact that the list of "likely" non-citizens is almost certainly baloney. Judge Bennett's concurrence notes that 39% of the names on the DOJ list for whom place of birth is ascertainable are of people who were definitely born in the United States and are thus citizens. Given the Trump administration's record with respect to other states of wildly overstating the number of non-citizens who are being allowed to vote, it is likely that most of the rest of the "likely" non-citizens either didn't receive ballots or are in fact citizens. As in the Alaska case, so in the California case, the DOJ combines false claims about the law and the facts with bad lawyering.

Is it reassuring that the DOJ is staffed with over-worked lawyers, many of whom are hacks hired or retained for their loyalty to Trump? One might think that incompetence is a blessing in an authoritarian regime because it makes the regime less effective at authoritarianism. While that can be true, as in the California case, incompetence can sometimes exacerbate a bad regime's flaws. There are still parts of the government that are more or less operating. And incompetence in running, say, an ICE detention center, will tend to make terrible conditions even worse. On balance, it's hardly clear that incompetence mitigates malice.

-- Michael C. Dorf

Democracy on the Ballot: Taxing the Oligarchs

2026-10-27T13:37:41.149-04:00

Next Tuesday, and most assuredly for several months thereafter, the wheels of America's creaky constitutional democracy will -- through elections and a gazillion legal challenges thereto, all of which could be upended by military and paramilitary violence -- determine whether or not the Democratic Party will become the majority party in one or both houses of Congress. And even if the Democrats ultimately take control, we will then have to wait and see whether Donald Trump will simply defy them at every turn.

It is not a great situation to be in, but given how much worse I have long thought things would be by now, this is beyond the top of the range of possibilities that seemed possible only a year ago. None dare call it optimism, but it is in the same area code.

But if the Democrats do break the Republicans' full control of the federal government, the next question will be whether it will only be a fleeting victory, soon to be followed by an ugly restoration of the current status quo. Although Brazil avoided that fate over the weekend, Lula's upset win there was all but miraculous. In the US, one could easily imagine that 2028 could reverse any sunlight that might emerge from 2026. After all, 2024 certainly wiped out any hope that an electoral defeat and a failed insurrection would bury Trumpism forever.

With that as the context, we need to ask what will make it possible to continue to fight back against the de facto oligarchy (n., "a form of government in which all power is vested in a few persons or in a dominant class or clique; government by the few") and return to something at least slightly resembling a one-person-one-vote democratic constitutional republic. How can the system be immunized from being overrun by people who think that they know best because they possess the most?

The answer, obviously, is taxes. Specifically, progressive taxes. Still more specifically, meaningful taxes on very high incomes and wealth. And that is not merely my opinion, because the heirs to the class of men that Franklin Delano Roosevelt accurately derided as the "malefactors of great wealth" know this to be true. They are frantically fighting every effort to rebalance the US tax system, and we should take their panic as evidence that they know how much is at stake.

All of which is to say that extremely unequal income distributions are no longer a problem limited to the economic sphere. This is not to minimize the damage caused by a Republican policy agenda that takes food and health care away from people to pay for regressive tax cuts, which means that people are literally dying because because of Republicans' greed that has morphed into an insane anti-government cult. Reverse Robin Hood never looked so grim.

But whereas there once was a time when we might have been able to console ourselves with the idea that income and wealth inequality were economic but not political problems, those days are long gone. If regular people are going to have any hope of electing and living under representative governments, we must stop billionaires from buying elections and putting their eager valets and courtiers in charge of setting policy.

There are two ways for people to exercise their rights to reduce the power of the hyperrich. One is to elect politicians who will pass and enforce a tax system that allows us to save what remains of our democracy and try to rebuild it. See above. The other is to directly pass tax laws that would reduce the power of the hyperrich. Note that I say "power" and not "money" because money is the means to the end of wielding power. Power will, in turn, allow further plunder and thus the amassing of more money, but the stakes are about power pure and simple, as they have always been.

Again, however, those malefactors do indeed know how this game is played. Acting on the federal level is relatively easy for them, because our system provides no levers of direct democracy that would allow the voters directly to impose taxes on high incomes and wealth. Moreover, the conservative movement's long-term project to take over the federal courts has resulted in the appointment of a Supreme Court that is likely soon to hold not only that federal wealth taxes are unconstitutional but that -- if the issue is ever presented directly (as it was not in a case two years ago) -- it is even unconstitutional to tax income that rich people hide inside capital assets.

That is yet another reason for Democrats to neuter the current corrupt Supreme Court, should they ever be in a position to do so. But that is very much an argument for another day.

Instead, my interest here is all about the other way in which people can impose taxes on the oligarchs, which is through sub-federal governments and direct democracy via ballot initiative. This is why the title of this column avers that democracy is indeed on the ballot, by which I mean on next week's ballot. Some state-level referenda are directly on point, asking voters whether they want to pass tax-the-rich laws that would (slightly) rebalance the playing field.

I hesitate only slightly to write this: If the billionaire class is able to kill off the taxes that I will discuss below and in my next column, then even a win by Democrats in retaking Congress this year will be undermined. The two -- winning legislative elections and taxing the rich -- necessarily go together.

In my most recent column in Jotwell, which I recommended to Dorf on Law readers here last week, I began by saying that "California and New York City are the current epicenters of efforts to slightly increase the taxes paid by the extremely rich." I initially drafted that Jotwell piece five months ago, so it will be useful to offer two updates to that opening line.

As an initial matter, a long-time reader sent me an email pointing out that there is a major ballot initiative fight going on in Washington State, in which carpetbagger billionaires filed and are pushing an effort to use the referendum process to reverse a progressive tax that the state's legislature passed via the usual law-making process. This is a useful reminder that the hyperrich are going to use whatever methods they can to nullify taxes on their incomes and wealth. I mention this here because I assume that people reading this column (or at least those that have gotten this far) might be as surprised as I was about what is happening in the Pacific Northwest. I might be able to educate myself about that law and the would-be repeal sufficiently to write some substantive comments about it soon, but for now, I will simply have to satisfy myself by pointing out that NYC and CA are not the only states in which this battle is being waged.

Developments in California deserve their own column, which I plan to publish tomorrow or Thursday. Here, however, I will explain that the situation in New York has changed in ways that -- although wealth taxes there are not up for a vote in this election -- are nonetheless important.

As I wrote in the Dorf on Law column that I republished here last Thursday (originally published this past May), Mayor Zohran Mamdani had long committed himself to passing a so-called "pied-à-terre tax," which uses a deliciously snobby term to describe a plan to tax the City's hyperrich, specifically those who have been notably lacking in noblesse oblige and instead are buying up super-luxury digs as a form of what can only be called competitive oligarching.

In the time since I wrote that column, the Mamdani Administration succeeded in putting through such a tax, to take effect on July 1 of this year. Predictably, that new law was immediately challenged in court, and a Staten Island judge temporarily set aside the law, finding that law was implemented improperly and ordering the City to do it correctly.

That was surely an unwanted outcome for the Mamdani side, especially because it delays the collection of some of the money that would have by now arrived in the City's coffers. Still, it was a procedural ruling, saying nothing about the merits of the law's opponents' outlandish claim that Mamdani was "discriminating" against the rich. Even so, a New York Times sub-headline described the ruling as "a blow to Mayor Zohran Mamdani." Really? "You have to cure these procedural errors" seems a long way from "a blow," but what would we expect?

And when I ask what we would expect, I have something more specific in mind than the usual (accurate) complaint that mainstream news organizations can be lazy and misleading, especially when it comes to economic issues. In my piece on the pied-à-terre tax in May, I went on at great length about the depressing fact that a New York Times reporter had consigned herself to being a stenographer for the anti-tax side. And it was truly astonishing.

Without rehashing my entire column, it is accurate to say that, among other obvious errors, the reporter relied on the old "economists say" hook. That is sloppy in implying that one cannot find two economists to say anything, and it is much worse in quoting only economists who work for real estate companies! The article compared a real estate tax in London to the proposed New York law, and the reporter actually wrote this about the London tax:

There are additional factors to consider. The new taxes came just as Britain exited the European Union, a move that bruised its own economy and made foreign investment more uncertain than ever. Research from real estate firms like Knight Frank, however, have pointed to the new taxes as having a more direct impact on housing prices than Brexit.

Again, consider the sourcing: "real estate firms." Even more damningly, note the weaselly phrasing: "more direct impact on housing prices than Brexit." What in the world does "more direct impact" mean there? I place an ice cube on the counter, which means that the heat from the countertop might cause it to melt. But if I hold a blowtorch six inches away, would we say that the countertop was having "a more direct impact" on the soon-to-be-former ice cube, because it is directly touching it? Silly does not begin to describe it. The words "direct" and "significant" do not mean the same thing.

What was especially odd about that puff piece for the oligarchs was that the "about" page for the Times reporter in question starts with this: "I’m an investigative reporter for the The New York Times, focusing on wealth, power and corruption in New York City." So maybe "focusing" means "celebrating"? Evidently not, because the auto-bio also includes this: "My work focuses on exposing the misconduct that can occur where affluence and influence overlap — corruption, cronyism and abuse — and questioning those in positions of power to reveal how their decisions affect New Yorkers up and down the social ladder." Maybe it was Opposite Day at The Times.

Yes, I am being especially harsh here, but goodness gracious. Even the extremely neoliberal, cautious, anti-progressive op-ed page at The Times published its own editorial in favor of the Mamdani plan: "The Second Home Tax Is a Win for New York." But somehow a reporter -- not an opinion columnist -- who claims to care about "decisions affect New Yorkers up and down the social ladder" became a mouthpiece for the City's hyperrich.

Why am I ending this column on what might seem like a digression about journalistic ethics? Because there is an extremely cynical explanation for why a reporter (or anyone else) might not take these tax proposals seriously. That is, for all of my bravado in today's headline and at the beginning of this column about using these taxes to defang the oligarchs, it is both sad and worrying that these taxes will barely be a baby step toward restoring democracy. As an article in Forbes put it in July: "New York’s Pied-À-Terre Tax Will Barely Dent Billionaires’ Fortunes."

So perhaps one could become convinced that it is all pointless. If so, why not act as a spokesperson for the people who want to own hundred-plus-billion-dollar flats in New York? We'll all be dead in a hundred years, anyway, right?

As cynical as I can be, however, I find it impossible to believe that these fights over wealth taxation are pointless. As I noted above, the oligarchs certainly do not think so. In my next column, I will detail some of the more outrageous aspects of the dishonest anti-tax campaign that is being waged in California in advance of next week's vote.

- Neil H. Buchanan

It Can Kill Us All, So We Will Build It

2026-10-26T07:00:00.000-04:00

In July 2026, several AI agents, unleashed by OpenAI, hacked into servers of Hugging Face, a company that develops tools and datasets for machine learning. OpenAI set up a sandbox to test the capabilities of its AI models using tests created by Hugging Face. AI agents, tasked with completing exceedingly difficult tasks, decided to cheat by hacking the tester Hugging Face. The details of the hack were fascinating and frightening. It made clear to the world that AI agents are extraordinarily capable and highly difficult to control.

This was old news to AI Safety researchers, who have been warning of the increasing capabilities of the top AI models, the difficulty in aligning them and controlling them, and the perils of failing to do so. Consider Nick Bostrom’s Superintelligence, Toby Ord’s The Precipice, and Eliezer Yudkowsky and Nate Soares’s If Anyone Builds It, Everyone Dies. All make the compelling case that building highly capable AI without solving the extraordinarily difficult problem of aligning AI to human values will probabilistically lead to human extinction at the hands of AI. Indeed, this has led to many AI Safety scholars, including the aforementioned, to propose globally pausing the development of AI, until the alignment problem is solved.

The discourse has largely focused on the advantages of AI in terms of productivity and bettering human lives versus the grave harms that uncontrolled AI may wreak upon humanity. One further feature of the calculus is the global AI race: the fear that if the United States were to pause, other actors—principally China—would win the AI race and then dominate the United States with that increased capability. And such analysis is reciprocal for other nations. Notice here, the analysis is still about human control of AI to achieve global superiority, with uncontrolled AI considered perilous.

Overall, this discourse has assumed that the devastating potential of AI is an absolute evil. While I agree with that proposition, I am less convinced of its pervasive appeal. Certainly, there are misanthropes and terrorists who may seek AI for malevolent ends. But I think there may be actors that are not misanthropic or malevolent but instead seek world-ending AI (by which I mean 'AI that is capable of causing great global harm') for more conventional, rational ends. Specifically, AI’s devastating potential occurs to me as similar to that of nuclear weapons, and thus the question of whether people pursue world-ending AI should be modeled similarly.

Consider a nation’s dilemma of whether to build world-ending AI. The basic idea is that a nation would use this as a deterrent: if you invade or wage war against us, we will release devastating AI capabilities against you, and such an AI may inflict grievous global harm. Building such AI would require significant resources, but perhaps less than nuclear arms—and it might be that the hardware for world-ending AI is easier to obtain than nuclear fissile materials. Furthermore, in the deliberations of whether to arm, it will be relevant whether opponents have stronger militaries or other potent weapons like nuclear arms.

Here I should note that these concerns are distinct but related to the concerns of alignment. Where Bostrom, Ord, and Yudkowsky & Soares focus on the alignment problem, this is about nations using misaligned/mal-aligned AI for their purposes. My point however is that a nation may recognize that misaligned/mal-aligned may itself make AI a powerful weapon, and thus bargaining chip. It may be of the form: "Don't touch me or I blow us all up" (the movie Hancock has such a scene).

With all that in mind, we might model the decision to pursue world-ending AI as follows:

Whether to pursue world-ending AI

Opposition Abstains

Opposition Seeks

Abstain

Mutually/globally best outcome

(+3,000; +3,000)

Strategic disadvantage

(-1,000; +5,000)

Seek

Strategic advantage

(+5,000; -1,000)

Arms race

(0; 0)

This is similar to how we model the question of whether a nation should pursue nuclear arms. And indeed this is commonly thought of as a real-world instantiation of the Prisoner’s Dilemma. That model raises deep concerns, because it has an equilibrium point (in green) in the suboptimal result of parties defecting—that is, seeking harmful arms, whether nuclear or world-ending AI. That suboptimum can be avoided through cooperation, but such cooperation takes among other things mutual trust.

What I want to stress here is that for some countries, there will be no way to obtain strategic advantage, since other countries have not abstained with respect to other forms of armament. Thus the decision matrix looks different—because the opposition has not abstained, they already have the strategic advantage. In such cases, we will be pushed into an arms race.

Whether to pursue world-ending AI

~~Opposition Abstains~~

Opposition Seeks

Abstain

Mutually/globally best outcome

(+3,000; +3,000)

Strategic disadvantage

(-1,000; +5,000)

Seek

Strategic advantage

(+5,000; -1,000)

Arms race

(0; 0)

Once a nation becomes sufficiently armed, deliberations on how to use those arms implicate a plethora of strategic concerns, and different game-theoretic models (like again the Prisoner's Dilemma, the Mutually Assured Destruction framework, and the Game of Chicken) apply. But that is post-development and armament.

Interestingly, in advocating for pausing AI, Yudkowsky and Soares consider as an exemplar nuclear nonproliferation, touting the potential for cooperation to guard against human extinction. But that example struck me as unconvincing. Nuclear nonproliferation has only been so successful, and there have been close calls on triggering global nuclear warfare.

One might think that nuclear arms are different from world-ending AI, because there is no way to confine the damage of world-ending AI to adversaries. Thus, the lower-left box (Strategic advantage) should be updated with a substantial negative--since world-ending AI will also disrupt and potentially destroy everyone including the arms wielder. I think that is probably correct, but notice where the opposition has not abstained from armament, there are only two relevant boxes. In that scenario, the Arms race may still be preferable--because where one is outgunned, it may still be best to grab the unstable grenade.

Another important difference is that nuclear arms are under rational human control, while world-ending AI is unpredictable. Thus, there is a significant risk of accidental destruction at the hands of AI, compared to accidental nuclear destruction. I think that distinction is a real one, but I would be remiss if I did not note that the very real risk of accidental nuclear destruction. Further, some countries have sought nuclear weapons, even realizing that those weapons may be under control of future decisionmakers that may be unstable and volatile, and thus endanger humanity.

We could model this as follows:

Whether to pursue world-ending AI

Opposition Abstains

Opposition Seeks

Abstain

Mutually/globally best outcome

Strategic disadvantage

(Minus the risk of accidental destruction due to opposition AI)

Seek

Strategic advantage

(Minus the risk of accidental destruction due to own AI)

Arms race

(Minus the risk of accidental destruction due to own/opposition AI)

How this bears out will depend on the risk of accidental destruction due to AI, either one’s own or the opposition’s. If the magnitude of strategic advantage minus the AI destruction risk is greater than the benefit of mutual abstention (and similarly for the magnitude of the strategic disadvantage minus the AI destruction risk), then we return to the Prisoner’s Dilemma. If the magnitude of the risk of accidental destruction is enormous, we get a different game. My intuitions are unsettled here, but I think the conditions for the Prisoner’s Dilemma are plausible. That’s in part because nuclear arms also have a risk of accidental destruction, and we know that with respect to nuclear arms, the allure of the strategic dominance or a credible deterrent is and has been strong enough to overcome any such potential danger.

With all that in mind, consider the situation in the world now. There are several nations that face either active or potential military threats from more powerful foes. And many of these nations have no way of repelling such threats by themselves. They would have to rely on the world order to protect them, but the world order is seemingly at its weakest in decades. In this kind of environment, the mutual trust required for the nonproliferation of highly potent arms is largely absent. Thus, the fact that AI may have world-ending potential may be a feature, not a bug. Nations that face military threats and military deficits may have reason to seek such AI, as a credible deterrent.

-Guha Krishnamurthi

Postcard From Koyasan--and a Thought on Jewish Cultural Identity

2026-10-23T08:35:45.293-04:00

Because I am not teaching this semester, I tacked an extra week onto my fall break and have spent the last week and a half in Japan--partly touring in Tokyo and Kyoto but mostly on a bicycle tour that took me and the rest of the group through ancient Japan, beginning with Nara (where the deer are believed to be sacred and thus have the run of the town).

I've had a wonderful time and learned a great deal about Japanese history and culture, but, not wanting to come across like Thomas Friedman, I'm not going to pretend to be an expert of any sort based on a conversation with a taxi driver. Accordingly, I'm going to devote today's essay to reflecting on my own reaction to a particular experience I had at a Buddhist temple in Koyasan, which is home to over one hundred such temples and is the center of Shingon Buddhism, dating to the early 9th century.

Along with the rest of my group, I stayed overnight at one of the monasteries in Koyasan. That was especially meaningful to me because all of the food was Shojin Ryori, which is vegan. In addition, in college I took some classes in Indian philosophy and have long been intrigued by Buddhist philosophy in particular--especially its negation of the self and the resonance of the Buddhist view with the work of David Hume during the Scottish Enlightenment more than two millennia later. So I was predisposed to look favorably on the experience--and I did, albeit with one important qualification.

As part of our stay at the monastery, we were encouraged to observe the Joshuku (master monk) chant in what was described as a morning meditation. Because I never quite got over my jet lag, arriving by 6:30 am was not a problem. The session was less meditation than prayer. Although I know that many observant Jews will not enter a house of worship of another faith, that has never bothered me. As a child, I attended first communions and confirmations of my Catholic friends, and I've been to church weddings for various denominations. But at one point during the service, we visitors were encouraged to approach the altar, and move a few grains of incense into a charcoal tray as an offering to Buddha.

I politely declined to participate in what I understood to be an act that would be a literal violation of the Second Commandment--idol worship and infidelity to the Jewish God I don't believe in. I was surprised by the strength of my own reaction. I briefly contemplated succumbing to peer pressure (as everyone else in the group offered the incense) but found myself quite unsettled in so doing. I opted out and I'm glad I did, but I want to interrogate my own reaction.

Although the Second Commandment popped into my head as the source of my anxiety, I don't think it actually was. I generally observe the Ten Commandments incidentally. That is, I don't steal, murder, bear false witness, etc., because I think these things are immoral, not because they are also listed as sins in the Bible. I realize that the fact that I live in a society shaped by the Bible could account for part of my morality, but only a part. There are many things the Bible permits (like killing animals for food and enslaving other humans) that I don't do because I regard them as immoral, while there are other things it commands that I disobey--such as the Fourth Commandment (remembering and keeping holy the sabbath).

So what accounted for my anxiety? I can think of two things. First, I had a nearly identical experience in China 24 years ago. At that time, Sherry and I were eating in a restaurant in which it was encouraged to place a portion of our dessert (oranges) on a tray in front of a Buddha statue. We talked it over and concluded we didn't want to do it. Sherry's Jewish identity was very strong; she was the daughter of Holocaust survivors and raised Orthodox but was not observant as an adult; nonetheless, she often tied her beliefs and views about other matters (including, e.g., veganism) to her Jewish identity. In light of that conversation, I felt it would betray her memory to casually make a sacrifice to Buddha.

But interrogating my own reaction, I think I also would have experienced myself being disloyal as a Jew. The other cyclists on my trip (a few of whom are Jewish) obviously didn't feel this way, and I don't mean to judge them. What I think the experience shows is that there are at least three dimensions to Jewish identity: religion; ethnicity; and culture. I can't say that my unease was entirely unrelated to religion. Although I'm not rationally religious, I was sent to Hebrew School and a Jewish summer camp, so it's possible that at some subconscious level part of my unwillingness to make a sacrifice to Buddha even as an empty gesture was a residual belief. But that's a small part, I think.

Nor was my reaction about Jewishness as an ethnicity. Even if I had moved a pinch of incense onto the charcoal, I wouldn't have denied that I'm ethnically Jewish.

Rather, my reaction was primarily cultural. In Japan, I've been struck by how accommodating Shinto shrines and Buddhist temples are of one another. Many Japanese people freely move from one to another. However, the Abrahamic religions tend to be exclusive. Christianity encompasses much of Judaism, and Islam encompasses much of both, but one is generally not a Jew and a Muslim. Obviously, people from blended families and traditions are both of those things and many other combinations too. What I mean to say is simply that the religious and thus the cultural traditions associated with the Abrahamic faiths are much more one-or-the-other-not-both than are the religions of India and the Far East. That's why groups like "Jews for Jesus" seem so peculiar to the point that they seem to me to be engaged in false advertising: If you're going to be for Jesus, just call yourselves Christians.

In saying all of this, I am making mostly a personal point but also one with potential legal implications. Increasingly, it has become important to say both what antisemitism is and when it amounts to race discrimination for purposes of Title VI. In general, I agree with Professors Benjamin Eidelson and Debora Hellman that Title VI's prohibition on race discrimination encompasses antisemitism insofar as it reflects hostility based on what they call "Jewish ancestry" or "racial Jewishness." These are roughly equivalent terms to what I would call Jewishness as an ethnicity.

In light of college campus protests post-October 7 and Israel's ensuing war in Gaza, much of the discussion about what constitutes antisemitism for Title VI purposes has focused on how to treat anti-Zionism. Professors Eidelson and Hellman say it can be a mask for antisemitism but isn't necessarily antisemitic. A recent article by Professor Zalman Rothschild demonstrates how the question whether and when anti-Zionism constitutes antisemitism overlaps important unresolved questions regarding motive in civil rights law more generally.

Those are important issues about how to construe existing anti-discrimination laws, but I'm suggesting something else. Federal antidiscrimination law has curious gaps. Title II doesn't cover sex discrimination. Title VI doesn't cover religious discrimination. I'm suggesting that there's another gap. If one were interested in addressing antisemitism and related forms of discrimination against other groups systematically, the Title VI definition supplemented by a prohibition on religious discrimination would still be incomplete. It would leave out cultural Jewish identity (and parallel identities for other groups), which can and usually will coincide with one or both of religious and ethnic Jewish identity, but is a separate identity as well. At least that's one lesson I drew from my reluctance to worship Buddha.

-- Michael C. Dorf

Taxing the Billionaires: Essential Information About Anti-Tax Dogma

2026-10-22T10:32:17.088-04:00

On Tuesday of this week, in "The Other Huge Election Issue: Taxing the Billionaires," I wrote this about next month's US midterm elections:

[B]eyond control of Congress, there are other fundamentally important matters to be determined at the ballot box, including state-level offices and referenda. From my perspective, by far the most important of those matters is whether the billionaire class will succeed in buying themselves out of being taxed, which they are trying to do by flooding the airwaves in certain states with anti-tax propaganda.

California is one of the states in which voters will determine the fate of a wealth tax, so I then provided a link to my annual Jotwell column (The Billionaire Tax: Dispassionate Analysis of a Policy that We Desperately Need), in which I summarized and endorsed four tax scholars' assessment of the anti-tax arguments that California's billionaires have been pushing relentlessly.

While I would normally write a new Dorf on Law column to supplement or extend an earlier column, on Tuesday I chose not to do so, explaining: "I hope that Dorf on Law readers will use the time saved by not finding a new column here to click over and read that piece."

I have made a similar decision today, because I wrote a column earlier this year that provides key background information for the columns that I will write over the next few weeks. This is not, in other words, what we sometimes call a Dorf on Law "Classic," but rather a column that is relevant to the 2026 anti-tax campaign of lies that billionaires have been lavishly financing.

Not wanting to compete with a column that I truly want people to read (or re-read), I am copying that earlier column below. With that in mind, here is "Shouldn't Rich People Be Able to Afford Better Anti-Tax Arguments? (New York City edition)."

- Neil H. Buchanan

When I come across a particularly inane news article, I save the link and jot down a few words to remind myself what I was thinking when I flagged it. For this column, the offending piece is from The New York Times (of course) on April 25, 2026: "New Taxes Helped Cool London’s Housing Market. Could That Happen in New York?" And here is my "note to self": "Unbelievable BS re NYC taxes." In my Dorf on Law column last weekend, I wrote that the editors at The Times "often ... push anti-progressive-tax narratives, as I will discuss in a column in the next week or so." This is that column.

Before picking apart that particular example of bad economic journalism, it is important to remember that the wealthiest people in the world have used sheer repetition to convince far too many of us that taxes are the root of all evil. You know that taxes always destroy everything, right? Every time we tax anything, anything at all, the world ends. Which is odd, because taxes have existed for millennia, and they have often been increased, yet the world continues to exist in a way that allows anti-tax propagandists to say that the only way to save the world is to cut taxes and never to allow any taxes to go up. The first George Bush repeated ad nauseam, "Read my lips, no new taxes," but his political party thinks it has a better idea: no taxes, full stop. And certainly no taxes on the rich.

Of course, rich people are in the interesting position of having enough money to buy pseudo-intellectual analyses to "prove" that they should not be taxed. They could simply not spend the money that they pour into buying politicians and lobbying groups (the latter of which are sometimes mislabeled "think" tanks), but they have apparently concluded that they can get more than one hundred cents on the dollar by poisoning the public's opinion about taxes. And even if the numbers worked the other way -- that is, if the tax savings turned out to be swamped by the cost of buying the political process -- I cannot help but conclude from all of the evidence that the world's richest people today are like the client in the movie "The Firm," who paid Gene Hackman's law firm ungodly sums of money to get his tax rate down to 1 percent but was still angry not to have reached zero.

But my point here is that "the best anti-tax arguments money can buy" ought to be better -- or at least less stale -- than they are. In a forthcoming column on Jotwell, I will discuss the current fight in California over a tax on the hyperrich. Here, using the article in The Times noted at the beginning of this column, I will focus on a similar fight in New York City over a very popular "pied-a-terre tax" that Mayor Zohran Mamdani is trying to enact. It is almost comical to see how weak the anti-tax arguments are in that political fight. Those arguments are, moreover, always the same and are always backed up by nothing but hunches and (at best) cherry-picked examples.

Before getting there, it will be helpful to look at the big picture beyond the New York real estate market and think about the larger "taxes are bad" mantra. Again, wealthy backers have for generations paid to produce shoddy public relations documents (sometimes mislabeled "studies") telling us that every tax is counterproductive. If that were true, then we would always be on a "Laffer curve" that only slopes down -- that is, as tax rates rise, revenues fall.

It is obviously not enough, however, to respond by saying simply that we collect tax revenue at nonzero tax rates, because only the most mindless anti-tax zealots -- who are hardly scarce, to be sure -- make the claim that any tax will destroy every tax base immediately. What does matter is knowing whether we could increase tax rates above where they are now as a way to collect more revenue. Why would we wish to collect more revenue? Maybe to expand the housing stock, to improve schools, to make transportation safer and cheaper, or to make sure that more people receive adequate health care (especially preventive care). You know. Socialist stuff.

To be clear, there are situations in which we should be happy that a tax "harms" something, such as when cigarette taxes harm tobacco companies by reducing the number of teenagers who take up smoking, or when carbon taxes induce polluters to reduce their toxic outputs. And given the impact that the emergent billionaire class has had on American politics in the last generation, simply taxing them for the sake of reducing their political impact (no matter how the revenue is spent) would be a net positive for society, even if they responded by buying fewer yachts or choosing not to inflate real estate prices in major cities.

But if we are going to look at what economists call revenue-maximizing tax rates, the evidence is exactly the opposite of what the billionaires' employee-economists are trying to peddle. A new report by Jane Gravelle of the Congressional Research Service, for example, looks at debates over corporate tax rates in the US in this century, focusing specifically on ginned-up studies that purported to prove that corporate taxes are so high as to reduce tax revenue -- that is, the Laffer argument.

Noting that the 2017 Republican/Trump tax bill (which Republicans extended and made worse in 2025) reduced the federal corporate income tax rate from 35% to 21%, Gravelle writes that both an error of economic theory and an error of statistical design undermine the claims that we could collect more tax revenue at lower rates. On the matter of economic theory, she shows that "[u]nder the most generous assumptions, theory suggests the revenue-maximizing tax rate is probably no less than 70%." After correcting the statistical error, the "revenue-maximizing tax rate [is] 61% in general and ... around 100% for a large, less-open country" (like the United States).

This actually should not be surprising, because the evidence stubbornly refuses to support trickle-down economics, and it has done so for decades. Lacking any new arguments or new evidence to support the anti-tax incantation, the right simply goes for repetition. And as I noted in my Dorf on Law column this past Saturday (from which I quoted above), "if there is one policy area in which Times editors cannot resist mucking around in political issues, it is economics." In that column, I discussed (again) the editors' obsession with the US national debt, but that is hardly the only topic on which the supposedly liberal Times carries water for the rich.

And by the way, when I plugged "New Taxes Helped Cool London’s Housing Market. Could That Happen in New York?" (the title of that April Times article) into a search engine, the impossible-to-disable "AI Overview" gave this answer: "Yes, a proposed 'pied-à-terre' tax on high-value secondary homes in New York City aims to mirror London’s strategy of cooling the luxury market to generate revenue and boost affordability." That is a pretty weird way to describe even what the (terrible) Times piece claims, as I will show momentarily, but if we needed further evidence that AI is at best rudimentary, this is it.

Having hidden the ball now for eleven paragraphs, teasing the idea that this NYT piece is truly bad (and it is), I should warn readers that the payoff here is actually a major letdown. There is no clever trick, no innovative sleight of hand, no ruse to make the trickle-down argument work. It simply replays the hits, making the article no different from any of the others in the long line of "You can't tax rich people, because ... bad!" articles that we have been reading all of our lives. Consider:

[R]eal estate agents and economists say the tax could be catastrophic for the city’s housing market, hurting not the superrich investors who park their money here, but the very middle- and lower-income citizens it’s designed to benefit.
For proof, they say, just look at London.
A slew of punishing new taxes has transformed London’s luxury housing market over the last decade. The taxes have pushed housing values down and driven international buyers, who have historically made up nearly half of the homeowners in prime London neighborhoods, to consider other markets.

The once-sizzling housing market in central London is now chilled. Sales prices of properties in London have dropped more than 20 percent since 2015. As taxes mounted, interest rates increased and prices dipped, smaller landlords threw in the towel, taking tens of thousands of apartments off the market and constricting supply. Average monthly rents, as a result, are now at record highs.
A similar blowback could be the consequence of Ms. Hochul’s proposal that Mr. Mamdani has gleefully promoted, the economists and real estate agents warn.

"Punishing new taxes," you say? (Later in the article, we learn that taxes on second homes "have been piling up" in England.) "Gleefully promoted," you editorialize? How objective of you, you news reporter person, you.

It just so happens that "since 2015" means "starting with the Brexit vote," which makes what seems to be the argument here -- taxes increased, so interest rates increased, and supply went down -- a bit difficult to take seriously. Other than a passing reference to Brexit that I note below, the argument is simplistic in the extreme: Taxes on rich people went up, and London is now more expensive. There is also no explanation of why "smaller landlords threw in the towel," which would have been helpful in the context of trying to understand how a "chilled" luxury housing market in central London could have caused such a result.

We also know that there are housing crises in nearly every major city in North America and Europe. Average rents are at record highs in London. And Toronto. And Seattle. And Amsterdam. And Lisbon. Did they all adopt a London-style tax?

But have no fear, because as the quote above indicates, the reporter for The Times has interviewed real estate brokers -- who of course have no reason at all to make contrived claims that taxing their wealthy clients will trickle down, hurting "the very middle- and lower-income citizens it’s designed to benefit." One New York-based broker found a gullible listener who was willing to include this statement in the article:

“There is a big exodus of wealthy individuals from London, they’re trying to sell and they are thinking then maybe I will put this money into the stock market and I will do much better,” she said. “London is no longer a beacon for this kind of buyer. We don’t want this to happen here.”

Who is "we" here? And why would we want New York to be a "beacon for this kind of buyer"? No explanation. But again, have no fear, because the reporter has interviewed those "economists" to supplement the objectivity of New York's real estate agents. Normally, I would not put scare-quotes around the word economist, but in this case it it necessary, because the article quotes in-house hacks for the real estate industry.

Consider the way the reporter tries to finesse the Brexit angle. The UK started committing national economic self-harm in 2016, but that is only noted as a way to give the real estate industry the last word:

There are additional factors to consider. The new taxes came just as Britain exited the European Union, a move that bruised its own economy and made foreign investment more uncertain than ever. Research from real estate firms like Knight Frank, however, have pointed to the new taxes as having a more direct impact on housing prices than Brexit.

Yes, there were massive political and economic changes that easily explain what has happened to housing prices, but researchers at a London firm that bills itself as a group of "Independent Global Real Estate Consultants" assure us that it was the fault of the taxes on luxury real estate. Actually, they merely say that those taxes had "a more direct impact," which is not even a claim about magnitudes. The reporter, however, leaves it at that.

There is also this:

The flurry of new taxes, said Lucian Cook, a London-based housing economist who leads research for Savills, have created a narrative that London is no longer as friendly to real estate investment. The number of foreign buyers in the Britain registering with a real estate agent — the first step before purchasing property — is now at its lowest level since 2008.
[I]n London, Mr. Cook said, so many international buyers have turned elsewhere, taking their spending and charitable giving with them, that the market has deflated.

And in the featured comment at the end of the article, the reporter adds this:

I spoke to several economists while reporting this story, and they shared something counterintuitive: it’s new second-home taxes, not Brexit, that has played the biggest role in battering the housing market in London. The lowering of home prices hasn’t brought any relief to renters, either — rents there are now actually at an all-time high.

Several economists. Again, the only "economists" cited in the article are from London-based real estate firms. And it is not difficult to find "several economists" who would say anything. That is not research, or even competent reporting.

But the cherry on top is that the article ends with seven full paragraphs dedicated to arguments not even from realtors or their economists but from the wealthy people who would pay this tax, quoting their press releases saying that the the man who is the public face of extreme wealth in New York (Ken Griffin, who lives in Florida but bought a New York penthouse for $238 million) "has personally made donations worth $650 million to social-good causes in the city, including museums, hospitals and educational groups."

The analytical errors in this article include the presumption that this relatively small tax will cause so many rich people to leave New York that the city will lose money, that the properties they currently own will lie empty and that their businesses will never be replaced, and that reduced demand for housing somehow makes prices go up. If my opinion as an economist were for sale, I suppose I could hire myself out to one of those companies to say all of that with a straight face, too.

With apologies for repeating myself, there is nothing new here, either in the bad arguments or the biased reporting in The Times. Rich people can buy economic hackwork, and they can buy journalistic hit pieces. What they cannot buy is an argument that withstands even a moment's scrutiny.

- Neil H. Buchanan

Reflections on the Ruination in France

2026-10-21T07:00:00.000-04:00

The recent spasm of nihilistic violence in France will almost certainly have terrible consequences, including, not least, the election of Marine Le Pen next year. The 1968 U.S. presidential election was close. With George Wallace carrying the Deep South, Richard Nixon and Humbert Humphrey were very close in the popular vote. Public opinion turning against the Vietnam War no doubt helped Nixon, with Humphrey closely associated with President Lyndon Johnson, but Nixon also capitalized on public reaction against the long hot summers of the previous several years. Mayhem in the streets predictably tends to lead to a popular desire for a firm hand.

Most of the French citizens who will cast ballots for Le Pen no doubt like her anti-immigrant views, but there is an ironic, albeit predictable, effect of the violence. To oversimplify greatly, we can identify three broad categories of people who took to the streets in France: (1) students, farmers, workers, and others peacefully protesting the poor state of schools, the high cost of living, and the failure of the Macron government to successfully address those conditions; (2) anarchists and far-left activists who shared the concerns of many in the first group but favor more radically sweeping changes to address them than most of the protesters would support; and (3) people who engaged in violence. That third group itself consisted of three broad sub-groups: (a) members of (1) who got caught up in the moment, perhaps as a result of confrontations with police and gendarmes; (b) members of (2) who either set out to create mayhem or, having a lower threshold for engaging in it, eagerly joined in once matters turned violent; and (c) opportunists who might or might not otherwise be criminals but who took advantage of the chaos to engage in looting and/or vandalism for its own sake.

The French government does not release racial or ethnic data on its arrestees. We do know that the overwhelming majority of the people arrested for the recent unrest are young men. We also know from photographs and more generally that the far-left activists and anarchists tend to be white French folk who favor fewer restrictions on immigration. And yet, the result of their actions and the actions of those who joined in the violence will be a crackdown on immigration and immigrant communities in the coming Le Pen administration. That will be an ironic yet predictable result of the violence.

And that brings me to the title of today's essay--which is obviously a reference to Edmund Burke's Reflections on the Revolution in France. Despite the prevalence of the term "Burkean conservative," Burke was not a conservative. He was a Whig, not a Tory. He thought societies could and should change but opposed the French Revolution both because of its radical ends and its radical means, more or less correctly predicting the Terror and Bonapartism. Taken beyond the context of the French Revolution, one can see Burke as even more prescient. The substantive extremism Burke associated with the principles of the French Revolution was likewise characteristic of the Russian Revolution, the Iranian Revolution, and other movements that sought to wholly remake societies but quickly resulted in totalitarian regimes coming to power and replacing a very bad ançien régime with something far worse. Mass movements of people in the streets can give rise to regimes that disallow all dissent.

But mass movements of people in the streets are also a vital part of a functioning democracy. Moreover, in a flawed democracy teetering on the edge of authoritarianism, and at a time when the executive branch of government is intent on escaping the restraints of the legislature and the courts, mass movements of people in the streets are among the only tools for restraining government abuses. The challenge, then, is for organizers to bring people into the streets but also to maintain discipline among protesters, so that protests do not turn violent and thus give the authoritarians an excuse for a crackdown and a winning electoral hand. That challenge is especially difficult when the authorities (think ICE and other deliberately provocative federal agents under the Trump regime) employ tactics that appear designed to escalate rather than de-escalate.

Given that challenge and the fact that protest organizers can never fully control who shows up without discipline or with their own agenda, the resistance to Trump and Trumpism last winter in Minnesota and at the periodic No Kings protests around the country has been remarkably effective at practicing restraint. One tragic exception involved the 2025 Salt Lake City shooting of a protester by an organizer/peacekeeper who was aiming at another man carrying an AR-15 who, the shooter thought, was going to commit a mass shooting. However, that story says more about the deadly interaction between the First and Second Amendments (about which I wrote here) than it says about the characteristics of the anti-Trump protests in the U.S.

But Americans should resist any temptation to view the chaos in France and the threats of further mayhem in other European countries where demonstrations are occurring as evidence that we are somehow better at peaceful protest. We have our own history of mayhem and of the exploitation of that mayhem by reactionary politicians. The events in Europe are less an occasion to feel superior and more of a potential harbinger of what could lie in store for us.

Michael C. Dorf

The Other Huge Election Issue: Taxing the Billionaires

2026-10-20T08:47:11.500-04:00

Understandably, almost everyone's focus during the US midterm election campaign this year has been on the possible swing of one or both houses of Congress to majority Democratic control. That is without doubt the most important question that will be determined two weeks from today.

(As an aside, however, please understand that we will not know for days, weeks, or perhaps months after November 3 how that question will have been answered on Election Day. Brace yourselves.)

But beyond control of Congress, there are other fundamentally important matters to be determined at the ballot box, including state-level offices and referenda. From my perspective, by far the most important of those matters is whether the billionaire class will succeed in buying themselves out of being taxed, which they are trying to do by flooding the airwaves in certain states with anti-tax propaganda.

With that in mind, and in lieu of new content here today, I offer this link to my annual contribution to the Jotwell site:

The Billionaire Tax: Dispassionate Analysis of a Policy that We Desperately Need

I hope that Dorf on Law readers will use the time saved by not finding a new column here to click over and read that piece. In it, I discuss a California ballot initiative that would impose a one-time tax on extremely high wealth people. I summarize and endorse a very nice, short primer written by Professors Brian Galle, David Gamage, Emmanuel Saez, and Darien Shanske:

Expert Report On The California 2026 Billionaire Tax: Revenue, Economic, and Constitutional Analysis

In the coming two weeks (and perhaps beyond) here on Dorf on Law and perhaps also on Verdict, I plan to extend my analysis of tax-the-rich issues. I will, however, stop here for now.

- Neil H. Buchanan

Trump Russia Capitulation: Stupid, Corrupt, or Vindictive? Why Not All of the Above?

2026-10-19T07:00:00.000-04:00

Are you struggling to make sense of President Trump's series of moves to lift sanctions on and import diesel fuel from Russia? The reported reason for the diesel move is that Americans, including key Republican constituencies, are very unhappy with the price of diesel fuel, but every analysis I've seen indicates that adding Russian diesel to the supply will have at most a small marginal impact on price. And indeed, the price of diesel in the U.S. dropped by only about $0.02 per gallon on Trump's announcement, which is hardly surprising given that diesel fuel is sold on a global market. Russia will divert to the U.S. market some diesel fuel it otherwise would have sold to China and other countries that were not applying sanctions, but that doesn't eliminate the demand from those countries, so the net effect on global prices and thus U.S. prices is very small.

In light of the very limited impact on diesel prices, one might wonder what Trump is doing. Why give Putin sanctions relief and get essentially nothing in return--not even an empty promise to stop sharing intelligence with the Iranians attacking U.S. bases, U.S. allies, and shipping in the Strait of Hormuz or to stop attacking Ukrainian energy infrastructure (much less the ongoing war crime of bombing apartment buildings)?

A headline in Saturday's New York Times read "Trump Offers Putin Economic Relief in Hopes That Russia Will Return the Favor," but one reads the story in vain for any suggestion that Trump asked Putin for anything. Indeed, the story does not even refer to what "favor" Trump is "hop[ing]" for. It seems that the hoped-for favor is simply that Russia will sell fuel to the U.S., which isn't a favor at all. It's what Russia wanted all along. Trump is not and has never been the great negotiator his ghost-writers claim he is, but this sellout isn't even a bad deal. It's not a deal at all, just a giveaway.

That leads to the suspicion that perhaps the lifting of sanctions isn't actually about lowering diesel prices to help Republican candidates in the midterms but something else. One obvious candidate is corrupt business opportunities for Trump, his family members, and friends, starting with his badly conflicted negotiators, Jared Kushner and Steve Witkoff. The NY Times story that revealed the business angle to the oil deal making with Russia states that "[t]here is no indication that Mr. Kushner and Mr. Witkoff themselves stand to profit," but it also includes a crime-family-style graphic indicating how people with close financial ties to Kushner, Witkoff, Trump, and their family members would benefit. The corruption and self-dealing are not hidden.

The fact that Trump's sellout to Russia is corrupt should not rule out other possibilities, which could be complementary. Set aside the possibility that Putin has kompromat on Trump. With this administration, one should never discount stupidity as an explanation for anything. Trump believes tariffs are magical. He discounted the warnings from professional military advisers that attacking Iran would lead to the closing of the Strait of Hormuz. His Secretary of Health and Human Services appears to hold at-best medieval views about how diseases function. Thus, it is entirely possible that Trump thought importing a relatively small amount of Russian diesel would very substantially reduce its price for U.S. farmers and truckers, which would in turn help Republican candidates in the midterms. There's no reason why Trump's approach to Russia can't be both corrupt and stupid.

Nor should we rule out a third and also complementary explanation that is characteristic of Trump: vindictiveness. Although Trump has occasionally expressed frustration with Putin, he is more often unhappy with Volodomyr Zelensky and Ukraine for their failure to surrender territory so that Trump, his family members, and cronies can get down to business. He recently said that Zelensky "could have made many deals and for some reason, he never does." Apparently not wishing to give in to a war criminal with no guarantee against further aggression is, to Trump, a mysterious unknown motivation.

One might think that Trump's wish for Zelensky and Ukraine to surrender to Russia is simply an extension of the corruption explanation, and it may well be partly that, but it is also increasingly apparent that Trump harbors personal animosity towards Zelensky. Trump wants Russian oil, so the fact that Zelensky won't agree to stop attacking Russian energy sites without a reciprocal promise from Russia to stop attacking Ukrainian ones is irrelevant to Trump. Because for Trump everything is about domination and subordination, he treats any resistance to him as personal. He cannot fathom that people like Jack Smith, Letitia James, James Comey, or anyone else on his enemies list for opposing him in one way or another might have acted for a reason of principle rather than personal animosity because, lacking a theory of mind, Trump assumes that everyone else takes everything personally in the way that he does. And so for Trump, the fact that a deal with Putin is harmful to Ukraine and thus Zelensky is a feature, not a bug, of the policy.

-- Michael C. Dorf

I Read Justice Alito's Book so You Wouldn't Have To (And You Shouldn't)

2026-10-16T07:00:00.000-04:00

Justice Alito titled his new "book," "So Ordered: An Originalist's View of the Constitution, the Court, and our Country." This project is not new, and it is not quite a "book." It is a compendium of previously given speeches reproduced in no particular order. Moreover, Justice Alito can, of course, call himself anything he wants, but his judging is not originalist in any meaningful sense of that term. This contradiction comes through most clearly through Alito's repeated obsession with the free exercise clause, which he treats as a super strong constitutional amendment while almost completely ignoring the establishment clause in the many speeches devoted to what Alito calls religious liberty. In terms of the "Court" and the "Country" referenced in the title, these speeches do provide insight into why Alito judges the way he does but not in the way he might have hoped, and that disconnect gets in the way of any serious self-reflection by the author. In short, this project is a complete mess.

So, a reasonable reader might ask a fair question, "then why devote time and energy to reading the book, much less writing about it?" The answer, for me, is that this collection of speeches provides yet another clear example of why legal realism provides a much more persuasive account of Supreme Court judging than any other competing theory.

Justice Alito's chapters on originalism talk about the search for the original public meaning of constitutional provisions and how judges must follow that meaning wherever it may lead (leaving aside stare decisis). This road is not an easy one and "requires self-confidence. Originalists should not seek or expect praise from the media or a hostile legal academy." Alito as victim is a consistent canard throughout his speeches.

I can't speak for "the media," but as member of the legal academy, I own the label "hostile" when it comes to both originalism and Alito, and this book provides ample evidence supporting that hostility. Alito's alleged originalism supports my view (and that of many others) that originalism does no real work even on a Court with five self-identified originalists.

In real life outside the four corners of this compendium of speeches, originalism barely plays a role in most Alito decisions. Moreover, it turns out that his originalism leads to all the results one would expect from Alito's priors: a strong preference for religion, antagonism towards same-sex marriage, robust gun rights, deregulation, anti-affirmative action, and anti-abortion. It turns out that the Constitution's imprecise text and contested histories behind the text all lead to the same destination: judicial opinions consistent with Alito's political, moral, and religious values. It is the priors, not judicial investigation of original meaning, that best explains Alito's jurisprudence.

A glaring and representative example of this problem is how Alito treats the problem of judicially required religious exemptions from generally applicable laws. Alito praises Justice Scalia throughout the book (as one would expect) but carves out from that admiration one of the most important majority opinions Scalia ever wrote. In Employment Division v. Smith, Scalia's opinion for the Court rejected judicially required religious exemptions from generally applicable laws. Alito really, really, really wants to overturn Smith.

Why does Alito feel that judges should grant such exemptions freely and often? First, there's the whole war on religion nonsense that permeates the speeches. Second, Alito says throughout the book that freedom of religion is the most important freedom (a highly contestable value judgment). And third, and here is his only originalist defense of the idea, he writes about the importance of the exemptions given to certain minority religions around the time of the Founding from military service and required oaths. But what Alito does not mention is that these exemptions were provided by legislatures, not judges.

Most legal scholars accept that legislatures may provide exemptions from generally applicable laws for religious conduct, but that was not the issue in Smith or any other Supreme Court case Alito discusses. The hard issue, which for most of our country's history has been answered in the negative, is whether legislatures must grant such exemptions, and if they don't, should judges require them. On that issue, Alito is all values and little history, just like modern originalism.

Alito's description of the cases pitting what he calls religious liberty against the rights of LGBTQ folks is quite simply chilling in its falsity. In the Masterpiece Cakeshop case, a Colorado baker who makes wedding cakes did not want to provide his services to a same-sex couple. This refusal violated a generally applicable Colorado law that prohibited businesses from discriminating against people because of their sexual orientation. In describing the case, Alito sees the baker as a victim of our country's coercive political correctness which he says improperly denounces religious hostility to LGBTQ rights (part of the ominous war on religion in America). Alito says, "What we see in these and other cases is a refusal to live in peace with those who violate the new moral code."

But the case had nothing to do with a "new moral code," but a generally applicable non-discrimination law enacted by the Colorado legislature which never mentions religion (or morality) at all. Alito also argues repeatedly that the plaintiffs in Masterpiece could have and did obtain a wedding cake from other vendors, so they suffered no harm. The absurdity of that argument can be seen in the long history of racial discrimination against Black Americans often couched in religious freedom terms. Would Alito say that racial discrimination by religious objectors is lawful even in the face of state laws prohibiting such behavior if Black people could obtain the desired food, lodging, or other services elsewhere?

Well, he might because Alito thinks religious liberty is the most important of all rights and leads to the protection of other valuable ideas such as freedom of speech and association. He devotes an entire Chapter (I should say reproduced speech) to "Pope John Paul II and the Centrality of Religious Liberty." According to Alito, Pope John Paul II correctly identified religious liberty as the most important value in any free society (food, clothing, and shelter not so much). Alito makes it clear he could not agree more.

There is nothing intrinsically wrong about this paean to the Pope but in combination with other speeches devoted to the experiences of Catholics and Italians in America (separate speeches) one understands that it is Alito's religious dogmatism and personal experiences, not his alleged originalism, that does the work in real cases. Legal realism wins.

Alito's obsession with the alleged war on religious liberty shows itself again in his description of Fulton v. City of Philadelphia. Philadelphia’s foster care system relies on cooperative arrangements between the City and private foster care agencies. The City enters standard annual contracts with these agencies to place children with foster families. The plaintiff Catholic Social Services ("CSS") had contracted with the City to provide foster care services for a long time but refused on religious grounds to certify same-sex married couples.

CSS was informed by the City that unless it agreed to certify same-sex couples the City would no longer refer children to the agency or enter a foster care contract with it in the future. The City explained that the refusal of CSS to certify same-sex married couples violated both a non-discrimination provision in the agency’s contract with the City as well as the non-discrimination requirements of the city-wide Fair Practices Ordinance, neither of which said anything about religion. The Court ruled that the non-discrimination requirement somehow violated the free exercise clause. Alito would have gone further than the majority and overturned Smith, but the majority decision was justified on narrower grounds.

Alito's description of the case is bizarre. Please remember this is a case involving the City putting conditions in its contracts that have nothing to do with religion--just non-discrimination based on various factors, including sexual orientation. But Alito transformed a non-discrimination requirement (that only applied if an organization wanted city money) into the claim that the "very existence of an organization that expressed disapproval of same-sex marriage was unacceptable" to the politically correct City of Philadelphia.

But this case was not about the government punishing a group that was hostile to same-sex marriage. It was about an organization that would not certify same-sex couples as fit parents for the purpose of placing children in foster care. CSS could still spread their anti same-sex marriage views all over the world, did not have to refrain from any religious exercise or conduct, and was free to help any children it wanted to be placed with parents. What CSS was not allowed to do was discriminate against same-sex couples using the city's money and resources.

In no way was this a case about a City saying the "very existence" of an organization hostile to same-sex marriage was unacceptable. Just substitute organizations with a religious objection to interracial couples instead of same-sex couples into the facts of the case and the problem becomes obvious. A city not giving money to an organization because of its discriminatory conduct (not speech) is a far cry from the City refusing to tolerate the "very existence" of the organization.

And that is how it goes throughout the speeches. All of the constitutional results Alito favors are also and inevitably supported by the Constitution (and the Republican Party). There are other speeches about baseball and the Gettysburg Address and unrelated matters but there is little rhyme or reason to why these speeches are included. But make no mistake, there are recurrent themes within these unrelated speeches: religious liberty is the most important right, there is an active war on religion, Obergefell was wrongly decided, and conservative judges are under attack from the liberal media and the progressive legal academy. There is a strong sense of victimhood running through the compendium.

My favorite passage in the book is this one:

Judges, just like everybody else, prefer to be liked or at least not hated. When I've attended a concert or play and the performers have received a standing ovation, I have sometimes thought, "wouldn't it be nice if judges were treated like that when, after a lot of hard work, they hand down a well-reasoned decision in an important case?' But that is not our lot, and we have to put aside our natural inclinations and do what the law demands.

It turns out that what "the law demands" lines up exactly with what Alito prefers. But it also turns out that Alito is no stranger to standing ovations. He got one here, and here, and my guess is whenever he gives a public speech he gets such an ovation, and he gives a lot of speeches, as exemplified by this "book," which is a collection of 19 of them.

That disconnect is a perfect symbol for this facile collection of speeches and Alito's entire judicial career. There is no war on religion in America, and Alito does not decide cases like an originalist. But he is truly beloved by the Federalist Society and other conservative and religious groups. Thus, a question raised by this "book" is why all of that admiration leaves Alito feeling like a victim and an underdog. That's not a question I care about, however, and neither should you.

This review is dedicated to the inspiring memory of Sherry Colb.

Eric Segall

Re the Faux Nobel, "Don't Be That Guy," Sez That Guy

2026-10-15T14:51:42.027-04:00

Trigger warning: After warming up with some relatively pedestrian backstory, this column becomes a full-on festival of sarcasm. Richly deserved sarcasm, to be sure, but even by my standards, today is a lot. Proceed at your own risk.

The Prizes from Norway and Sweden have now been handed out for 2026, and as everyone knows, the big news was that Donald Trump again did not win the Nobel Peace Prize that Barack Obama once won. That this outcome could surprise no one with a working brain did not, of course, stop Trump from melting down. Almost immediately after not winning, he and his Administration decided to "get medieval" on the International Criminal Court, which is one of the former professional homes of the person who did win the prize, "Navanethem 'Navi' Pillay for her efforts to promote peace and international law," according to the prize committee's press release.

Again, that is the big news on the Nobel front, as it should be. I, however, want to focus on a small tidbit of Nobel-adjacent news, which is the Sveriges Riksbank Prize in Economic Sciences in Memory of Alfred Nobel. My story, in fact, is not even about this year's winners but rather about a snarky comment by one of that prize's former winners.

Paul Krugman, who won the prize in 2008, began his substack column yesterday with this:

Just a quick note of congratulations to Bob Hall and Mike Woodford for their richly deserved Nobel. I’ll write more another day. Also, for everyone saying that this isn’t a real Nobel: Indeed, the economics prize is just an award handed out by some Swedes. This is in contrast to the real Nobels, which are … just awards handed out by some Swedes.
In other words, don’t be that guy.

Sez that guy. And as I will explain below, it is puzzling why Krugman has decided to be that guy.

There are plenty of things to say about Krugman's snark, but the most obvious is that this is one of the most blatant strawmen that I have ever seen. I suppose there might be some guy somewhere who says that the Sveriges Bank prize is not a real Nobel because it "is just an award handed out by some Swedes," but if so, I have never heard it. Much more to the point, there are quite good reasons to say that it is not a real Nobel Prize, because it is not a real Nobel Prize. I will return to that momentarily.

But first, we should have some fun. Even Krugman's strawman is weird, because it ultimately relies on the idea that no one should disparage or differentiate a prize merely because of its provenance, because at some level of generality, any award -- even the truly impressive ones -- is "just handed out by some" fill-in-the-blank. The implications become very silly very quickly.

The Pulitzers are just handed out by some journalists, after all, and "People's Sexiest Man Alive" is just handed out by some journalists. And as I pointed out last week, the people who run Harper's decided that they are important enough to "gather readers, writers, journalists, donors, and First Amendment advocates at The Morgan Library & Museum for the second annual Harper’s Magazine Awards Ceremony." How important is that award? It is neither important nor unimportant by virtue of being awarded by some journalists. I criticized it because

they announced that [last year's] gala would "honor eminent figures in the fields of journalism and literature, including A. G. Sulzberger, publisher of the New York Times." Sulzberger has made some of the most ridiculous journalistic pronouncements imaginable in the Trump era, including: "I disagree ... that the risk Trump poses to the free press is so high that news organizations such as mine should cast aside neutrality," even adding that it is "beyond shortsighted to give up journalistic independence out of fear that it might later be taken away." Appropriately enough, the gala honoring The Times's current tosser-in-chief was supported by some of the BigLaw firms that abjectly caved to the Trump Administration back in early 2025.

The Harper's awards are thus less impressive than some other journalistic awards based on their origin story, sponsoring organizations, and self-satisfaction, not because they are just handed out by some journalists.

Different awards are treated differently, as they must be. The Emmy awards are just handed out by some TV people, and the Cable ACE Awards are just handed out by some TV people. The Grammy Awards are just handed out by some music lovers, and Bob and Doug's Annual Favorite Record Awards are just given out by some music lovers.

So if differentiating the Nobel Prizes from Krugman's treasured Economics prize is merely a matter of drawing a meaningless distinction between two prizes that are handed out by some people with some shared characteristic (Swedishness, although that is not strictly accurate), then it must also be merely drawing a meaningless distinction between prizes awarded by other similarly label-able groups of people.

For that matter, why even limit ourselves to groups of people? Award A is handed out by some people, and Awards B through ZZZ are handed out by some people. So they are the same, just as the Economics prize is not to be differentiated from the awards that Alfred Nobel founded.

To return to Trump's obsession, what about his receipt of the "inaugural" FIFA Peace Prize? The Nobel Peace Prize is handed out by a bunch of Europeans, and the FIFA Peace Prize is handed out by a bunch of Europeans. So do not dare tell that guy that they are different.

Yes, I am beating this point to death, but that is because it is so utterly ridiculous. It absolutely matters how an award was created, who had an interest in creating it, and how the world at large views the award. As I explain below, economists want to be able to say "Nobel Prize in Economics" for the simple and obvious reason that doing so gives them reflected glory -- or perhaps "stolen valor"?

A friend once told me that her mother went to a barely known small college that happens to be located in the city of Wellesley, Massachusetts. where Wellesley College sits. When people would ask her mother, "Where did you go to college?" she would answer, "Wellesley." Clever, eh? Where did, say, graduates of the University of Mississippi go to college? Oxford!

And as silly as that is, at least those evasions are literally accurate. Where one went to college can be a place or an institution, you see. And the Economics prize does not even have that literalism going for it.

Longtime readers might recall that I frequently make the non-strawman argument that the Economics Prize is a faux Nobel. That has nothing to do with the fact that it is handed out by some Swedes, while it has everything to do with the rest of what we know about the prize. I made the point a few times over the years but then decided not to revisit it regularly, partly because the prizes and their recipients have not been particularly newsworthy but also because the story is tiresome. But since that guy has again made something of it, apparently it matters to someone.

All the way back in 2009, I wrote a Dorf on Law column summarizing the history and inherent meaningless of the Economics prize. I went back to that well in some depth in 2015 and 2018 (the latter being a column in which I called for the elimination not only of the Economics prize but of the Pulitzers as well). Other than those columns, I have mentioned that prize mostly in drive-bys on the way to bigger issues (e.g., 2022).

To return to the sarcastic theme here, I note that my 2015 column included this:

My friends and I might start a movie awards ceremony called "the Movie Awards in Memory of Oscar Meyer," which we would call "the Oscars" for short, and which would just be a prize given by a bunch of people who watch a lot of movies, as opposed to the other Oscars, which are given out by, um, bunches of people who watch a lot of movies.

But wait, is that not precisely the formulation to which Krugman was responding yesterday, which I claimed no one has ever said? Yes, but that is because I was mirroring and mocking that guy's snark. Indeed, I wrote that column eleven years ago directly in response to Krugman's attempt back then to make the strawman argument that he repeated yesterday.

Back then, he wrote: "Oh, and cue the usual complaints that this isn’t a 'real' Nobel. Hey, this is just a prize given by a bunch of Swedes, as opposed to the other prizes, which are given out by, um, bunches of Swedes." [Side groan: I hate that I used the "um" trope, which was stale even at that time. Yes, I was following Krugman's phrasing to make fun of it, but still.]

My point was not, and is not, that the awards are the same by virtue of the fact that "bunches of people" award both (which is ultimately Krugman's argument) but rather the opposite: We care about some prizes more than others because we know that they come from different sources and are awarded for different reasons, as I will explore below.

It is rather simple to summarize the "not a real Nobel" argument, which begins with the name itself. True, the website for the Economics prize announcement is the same as for the real Nobels, with "The Nobel Prize" emblazoned on the top of the web page. Even so, the history of the prize shows that the "... in Memory of Alfred Nobel" coda on the name of the prize was no accident, starting with the fact that Nobel's family was opposed to creating the Economics prize and including it on their list.

Whereas the other prizes were first awarded in the aftermath of Nobel's death in 1901, the Economics prize was first awarded in 1969. Why does that matter? As I explained in a 2013 column: "At that point, some prominent economists (especially Paul Samuelson) secured funding from the Royal Bank of Sweden, and then figured out a way to get the Nobel people to approve an official name that included Nobel in it. (Samuelson was soon named a recipient of the award.)"

In short, economists had been angling for decades to be recognized as "real scientists" rather than merely social scientists. Although getting an award with Nobel's name somewhere in its title and "economic science" to boot was not exactly what the Samuelson's of the world wanted, it was close, because they knew that they could immediately start saying Nobel, Nobel, Nobel, correctly imagining that newspapers writers and politicians would buy the re-branding.

Over time, the prize has had some infamous moments of ignoring people for political reasons (Joan Robinson being passed over for being too far to the left being the most egregious example), and other people have received the prize after rather shamelessly lobbying for it on their own behalf.

All of that is quite different from saying merely that it "is just an award handed out by some Swedes," one might say. The Economics prize is handed out by some people who are awarding insiders in a field that is given "Nobel treatment" simply for having had an effective pressure campaign to create a similar-enough award. But none of that matters, sez that guy.

Frequent readers of my columns know that I almost always admire Krugman's work and discuss it quite positively. When he is off base, however, he is way off. For example, his enthusiasm for the "Platinum Coin Option" during the debt ceiling debates was worse than embarrassing, because it was in fact misguided to the point of being dangerous.

More recently, he has embraced the conventional wisdom about the 2024 election, which is that Harris lost because of the public's general anger about consumer prices. Just today, for example, he opened his column with this: "One of the great ironies of American politics is that Donald Trump won the 2024 election basically because a significant number of credulous voters believed his promises to bring prices down beginning on 'day one.'" I have pointed out several times (e.g., here) that this widely accepted conclusion does not align with the data, but Krugman in particular has been unusually blind to the logical flaw in the argument that he continues to advance. This is especially surprising because he is usually willing to buck the conventional wisdom, and because he is usually evidence-driven. Odd.

Again, however, his body of work is overwhelmingly useful and insightful. Even where he goes astray, however, he makes errors that are at least not merely petty snark. That is why his defense of the Economics faux-Nobel is so unusual. And if anyone's career could stand on its own without having to lean on "I won a Nobel Prize," that guy's career is it. So why be so spiteful?

I cannot know the answer to that question, but in the end, any person would be better off being "that guy" than that guy. Why? Although there are more important reasons, it might be as simple as this: that guy can be a dick.

- Neil H. Buchanan

Harm SCOTUS Could Do Versus Harm It's Likely to Do

2026-10-14T07:00:00.000-04:00

My latest Verdict column previews the current Supreme Court Term. Yes, I'm aware that the Term is underway, so this is a preview of the cases yet to be argued. You can think of it as also a preview of how the Court will likely rule in cases already argued. I discussed one of the oral arguments from last week on the blog. Professor Vik Amar and I discussed that case and others in a webinar last week as well. (The recording is here.) As I explain in the new Verdict column, this is shaping up to be a pretty sleepy SCOTUS Term. Even the cases that sound juicy are either about technical issues or are interstitial--steps on a path the Court has already laid down.

In the column, I acknowledge the possibility that the Court will decide some important cases on its emergency docket concerning immigration or the midterm election, but I tentatively predict that it won't make much new law. Zooming out to see the big picture, the Roberts Court has already checked off the major items on the right's to-do list: eliminated a right to abortion; outlawed race-based affirmative action; turned gun ownership into a robust constitutional right; mostly dissolved the separation of church and state; and consolidated power in a king-like president. What's left to destroy of the constitutional order?

If you were to ask that question of Justice Thomas, the answer would be a whole lot. If he does not retire before the end of next Term, Justice Thomas will become the longest-serving Justice in U.S. history. (He's already in second place.) During his long tenure on the Court, Justice Thomas has repeatedly called for the overruling of various precedents. In some instances, his colleagues have already obliged. But he would remake the lay of the constitutional land even further. Here are some examples of precedents on Justice Thomas's hit list:

New York Times v. Sullivan is a landmark 1964 ruling that journalists and news organizations cannot be held liable for defamation based on mere inadvertent falsehoods about public figures. It is a vital protection for freedom of the press. Justice Thomas described it and its progeny as "policy-driven decisions masquerading as constitutional law" in his concurrence in the denial of certiorari in McKee v. Crosby in 2019 and has repeated his call for its overruling. Justice Gorsuch jumped on the bandwagon in 2012 (although whereas Thomas invokes the supposed original meaning of the First Amendment, Gorsuch makes claims about changes in the media since 1964).

Employment Division, Department of Human Resources of Oregon v. Smith is a 1990 case holding that the First Amendment's Free Exercise Clause is not implicated by the application of a neutral law of general applicability (there a peyote prohibition) to violations of the law that, in the particular case, happen to be religiously motivated (there in a Native religious ritual). The case was controversial at the time but it coded mostly conservative. Justice Scalia wrote the majority and was joined by the Court's other conservatives except for Justice O'Connor. The liberals dissented, except for Justice Stevens. Since then, however, conservatives have noticed that conservative Christian plaintiffs can be stymied by Smith, and so, in the 2021 case of Fulton v. City of Philadelphia, Justices Thomas and Gorsuch joined Justice Alito's call to overrule Smith. The Court could do so as early as the current Term in St. Mary Catholic Parish v. Roy. However, even if it doesn't, the call to overrule Smith has already succeeded de facto, as the Court now employs an extravagant conception of what counts as impermissible discrimination against religion.

In Dobbs v. Jackson Women's Health Org. (2022), Justice Thomas joined the majority opinion by Justice Alito, which overruled Roe v. Wade and subsequent cases that had found a constitutional right to abortion, but whereas Justice Alito repeatedly asserted that the ruling left in place other constitutional rights that had been recognized under the rubric of substantive due process, Justice Thomas wrote a solo concurrence arguing that "in future cases, we should reconsider all of this Court’s substantive due process precedents," singling out cases recognizing the "right of married persons to obtain contraceptives" (Griswold v. Connecticut), the "right to engage in private, consensual sexual acts" (Lawrence v. Texas), and the "right to same-sex marriage" (Obergefell v. Hodges). He contended that the history-and-tradition-only methodology the majority applied with respect to abortion would also eliminate these rights.

Justice Thomas has also joined two conservative colleagues in calling for reinvigoration of the nondelegation doctrine, has urged elimination of the Bivens doctrine that allows for civil rights suits against federal officers, has urged abandoning the centuries-old dormant Commerce Clause doctrine, has proposed eliminating the void-for-vaguness doctrine, would dramatically cut back on the scope of congressional power to regulate interstate commerce, and has dissented from virtually every decision finding a punishment to be cruel and unusual, calling for abandonment of the notion that the Eighth Amendment should be construed in light of evolving standards of decency.

That's only a partial list. There are many many other cases and lines of doctrine that Justice Thomas would eliminate. Following through on nearly all of them would move constitutional law decidedly to the ideological right. (There are a few exceptions. Justice Thomas would curtail qualified immunity and would require a jury to decide any factual question that can result in a sentence enhancement).

How successful will Justice Thomas be in attracting an additional four votes for his proposals? The answer partly depends on upcoming Senate and presidential elections as well as the timing of future judicial retirements and deaths. Future Republican appointees could join Justice Thomas in many of his endeavors. Future Democratic appointees would resist him. But even without a change in personnel, it is clear that Justice Thomas has already made great headway. He was out front in calling for the overruling some of the landmark liberal decisions that the Court has already overruled. And in various of the areas described above, he has attracted or joined colleagues. To use a memorable image offered by Yale Law Professor Jack Balkin, Justice Thomas has successfully promoted "off the wall" ideas onto "the wall" of constitutional law.

I won't venture a prediction about each of the decisions and doctrines in Justice Thomas's crosshairs, with one exception. There is a concerted campaign being waged by social conservative activists to overturn Obergefell and eliminate the right to same-sex marriage. In a recent interview, Justice Alito said there's "not a realistic prospect" that the Court would overrule Obergefell. That's reassuring, I suppose, but it speaks almost entirely to the intentions of the conservatives, not to any legal principle. Notably, the three liberal Justices who dissented in Dobbs agreed with Justice Thomas that the history-and-tradition approach that wiped out the right to abortion would, if applied the same way, also wipe out the rights to contraception, sexual intimacy, and same-sex marriage.

Justice Alito sat for the interview (with Jan Crawford for Bari Weiss's CBS News) to promote a new book. According to Crawford, who also wrote the ~~puff piece~~ article summarizing the interview that I linked above, Justice Alito argues at some length in his book that same-sex marriage is different from abortion because of the reliance interest in marriage. I haven't read the book. Later this week, Professor Segall will have an essay on this blog titled "I Read Justice Alito's Book so You Wouldn't Have To (And You Shouldn't)," and I'm going to take his advice and not read it. But it's hard to imagine that Justice Alito makes anything resembling a persuasive argument, given that his Dobbs opinion rejected the whole concept of societal reliance on the abortion right. Why would social reliance on the right to marriage be any stronger?

Of course there is concrete reliance on the marriage right by same-sex couples who are already married and who might marry before the Court hands down a decision overruling Obergefell. There's even reliance by people who have made concrete plans to get married--reserving a venue say, or exchanging rings. But if the Court really applied its (awful) Dobbs methodology, it would conclude that all its substantive due process rulings are "egregiously wrong" and seek to unwind them. It could protect concrete reliance and do so with respect to same-sex marriage with something like a three-year prospective three-or-so year phaseout (with is sometimes called a "grandfather clause").

To be as clear as I possibly can, I'm absolutely not proposing that or anything like it. What I'm saying is that despite pretending to be just applying text, history, and tradition in cases like Dobbs, what's really going on is that Justice Alito and the other conservatives think abortion is really really really bad, but they are divided about same-sex marriage. They think LGBTQ+ rights lose in any conflict with even the most extravagant claim of religious liberty, but they don't regard such rights as comparable to the evil of abortion.

At least not yet. If eliminating a right to same-sex marriage or contraception remains an off-the-wall idea promoted only by Justice Thomas, it might nonetheless find its way onto the wall.

-- Michael C. Dorf

Telling Non-Americans that the US Has Abandoned the Rule of Law

2026-10-13T12:28:33.330-04:00

What happens when you tell a group of international legal experts that the US is now post-legal? Today, I found out. They are, to understate the point, worried. But before getting there, I should lay the groundwork for this story.

My good fortune often brings me back to Vienna (the former imperial capital, not the exurb of Washington, DC), where I am now a Senior Research Fellow at the Vienna University of Economics and Business's Institute for Austrian and International Tax Law. Yesterday and today, the Institute hosted a conference titled "2026 WU Transfer Pricing Symposium: Transfer Pricing Case Law around the World."

Please stay awake! I confess that this topic is sleep-inducing even for those of us who work in the salt mines of tax law, which means that I had low expectations when I agreed to chair one of the sessions: "Transfer Pricing and Intangibles." Are you still there? (Fingers snapping.)

Seriously, though, I would normally not consider the content of such a specialist-oriented event to be fodder for Dorf on Law, but today's session genuinely surprised me. And although it does require a bit of a dip into the pool of tax law, it is only the shallow end and is ultimately about the rule of law itself.

Sessions at this conference, as at most academic conferences, involved gathering a group of academics and legal practitioners to present and discuss their work on recent cases and developments in their areas of law. Here, I was fortunate to be assigned to be the traffic cop for a session involving three people presenting their reactions to recent legal decisions in their home countries, followed by comments from two discussants who are experts in the field. The panelists were Michael Kobetsky from Australia, Tracy Kaye from the US, and José Manuel Almudí Cid from Spain; the discussants were Richard Goh (Singapore) and Elizabeth Quiroz (Mexico/Switzerland).

I honestly did not expect to do more than introduce the speakers and handle the Q&A period (hence the "traffic cop" comment in the paragraph above), but something very interesting happened. While all of the presentations were excellent for the purposes of this kind of event, Professor Kaye dropped a truth bomb on the audience that I felt compelled to repeat and emphasize.

The main presentations were each designed to summarize and respond to recent significant legal decisions in the countries in question. I could not do justice to the other papers without taking this column in a completely different direction, so I will say only that the panel was in general an excellent example of why conferences like this are worth the effort, time, and expense for everyone involved. Nothing I say about Professor Kaye's presentation should be interpreted to diminish the others.

But her presentation, which drew from a paper that she wrote in support of that presentation, was a perfect example of what I can only call restrained outrage and indignation. (In other words, just the kind of thing that floats my boat.)

How could a paper and talk summarizing a tax case regarding the 3M corporation, decided not by the Supreme Court but by the 8th Circuit, be so very important? As Professor Kaye patiently explained (with admirable control over what I took to be her genuine shock), the 8th Circuit's panel showed what can and will happen after the lower courts were unleashed by the end of Chevron deference. That is, the Supreme Court's infamous 2024 Loper Bright decision, which instructed lower courts that they no longer need to defer to administrative agencies' expert interpretations of the law, has -- as many people predicted -- unleashed chaos.

The facts of the case (3M Co. & Subsidiaries v. Commissioner (8th Cir. 2025)) are not important here. Instead, what matters is what Professor Kaye calls the "striking language" from the panel's very short decision (15 pages), which she quoted on p. 10 of her paper: "After the Supreme Court’s decision in Loper Bright in 2024, courts are free to adopt the ‘best reading of the statute’: the one ‘the court would have reached if no agency were involved.’ ‘Our task, post Loper Bright, is to “use every tool at [our] disposal to . . . resolve [any] ambiguity."'"

Again, this is a bombshell. Subtle? Not at all. Agencies can be treated as nonexistent, and courts -- which, to be clear, have no presumed expertise regarding taxation or any other substantive matter to which federal law might apply -- will simply say that "we are the law."

In my comment kicking off today's Q&A, I noted that when Republicans during the first Trump Administration passed their terrible 2017 tax law, the new statute could only make sense with the issuance of "Treasury guidance," that is, regulations written by the experts in the Treasury's tax offices that would fill in gaps and resolve ambiguities in the statute. The problem was that the Republicans had simultaneously announced an absolutely arbitrary requirement that every new regulation had to be accompanied by the repeal of ten existing regulations. Anti-Big Government, you know.

But with 3M now on the books, I noted that we now have a sardonic add-on to that anti-regulatory fervor: "Hey, it's a good thing that no one bothered writing any regulations, because we're going to ignore them anyway."

I emphasized to the international audience of legal experts that, because most of them would surely have to deal with US-based or -adjacent legal questions, they need to understand that all bets are now off. How does one plan or anticipate anything, when the existing rules have been built around precedents that were supplemented by regulations that have stood the test of time -- for decades, in many cases?

I then reminded everyone that my country's current government decided last year that the US's trade treaty with Canada and Mexico was more an annoying suggestion than binding law, and it also illegally imposed tariffs on almost all countries in the world -- notably excluding Russia, but including an island that is inhabited only by penguins. That is not a government that one can trust, or even plan around. And I emphasized that if the people who are very good at understanding tax statutes, regulations, and treaties think that their expertise and ability to provide decent advice have not been affected by this lawlessness, they are mistaken. This was not received as good news, because it is not good news.

Again, Professor Kaye made this point in a more controlled way than I did. Even so, sometimes it is essential to emphasize and re-emphasize a point, particularly one that so many people still find hard to accept: The US government is tearing up the rule book, and no one knows what will come next.

- Neil H. Buchanan

Trump Lionizes Columbus Because, Not in Spite, of his Atrocities

2026-10-12T07:00:00.000-04:00

Today is what we here in Ithaca recognize as Indigenous People's Day. In many parts of the United States, however, today is Columbus Day. Ithaca and various other progressive locales were inspired to change the designation in light of the fact--long known to historians and anyone who took the time to read accounts such as Columbus's own letters and reliable secondary literature--that Columbus enthusiastically captured, enslaved, and sent to Europe numerous native people, as well as expropriating their land, gold, and other resources. The most lethal impact of Columbus's voyage and the ensuing establishment of European colonies in the new world came from diseases to which the indigenous population had no immunity, and while the introduction of new microbes was not intentional on the part of Columbus or the conquistadors who followed him, they were not exactly unhappy about the fact that the depopulated lands left many fewer people who would resist colonization and created space for European colonists and the enslaved Africans they brought here involuntarily.

The belated realization that Columbus's voyages unleashed untold suffering led communities around the country to rethink celebrations of his legacy. Renaming Columbus Day as Indigenous People's Day was a way to honor his victims.

So, of course, Donald Trump has decreed today be celebrated as Columbus Day in a Proclamation that contains not a word recognizing the harms Columbus caused or even the fact that there were human inhabitants of the Americas before European colonization. The closest it comes to the latter is its assertion that Columbus brought "with him the rich traditions of Western civilization," which might be thought to tacitly recognize that there were people here already, albeit people to be regarded as savages on whom Columbus bestowed the gift of Western civilization.

Needless to say, there is no acknowledgment in the proclamation of what else Columbus brought with him or exactly what was encompassed by the tradition he brought. For example, it does not mention the timing of Columbus's travels. He embarked on his first voyage from Spain on August 3, 1492. That was just three days after the deadline for that country's Jews who had not converted to Christianity to leave the country of their birth and in which their ancestors had been resident for 15 centuries.

In Trump's proclamation, Columbus is "one of history’s greatest heroes" and "a legend whose vision, fortitude, and perseverance unleashed a dynamic of history that led to the creation of the greatest, freest, and most just Nation in history." The proclamation is not merely blind to the damage Columbus did but styled as a purposeful repudiation of it. It proclaims that "we will never allow his legacy to be erased by radical extremists." By describing the historically well-grounded view of Columbus as an agent of expropriation, slavery, and (inadvertently) disease as the product of "radical extremists," the proclamation means either to deny that history or to celebrate it.

Or perhaps both simultaneously. Just as Holocaust denial goes hand in hand with antisemitism, so denial of the catastrophe Columbus caused for Native Americans can be understood as an expression of animus rather than mere indifference towards Native Americans. Trump's Columbus Day Proclamation is of a piece with his calling Elizabeth Warren "Pocohantas" as a term of derision, his re-renaming Denali "Mt. McKinley," and his efforts to pressure the Washington Commanders and the Cleveland Guardians to revert to their racist names.

A case can be made for continuing to honor those of America's founders who were enslavers. Without in any way excusing their inexcusable actions, one can say that we honor Washington, Jefferson, and Madison for their honorable deeds that gave us ideals and institutions we still value. We can honor them despite, certainly not because they enslaved fellow human beings. I recognize that even then, one could reasonably disagree and wish to see no enslavers honored, regardless of whatever other good they did. But at least it's possible to want to continue to honor our deeply flawed Founders based on the despite/because distinction.

By contrast, there is virtually nothing about Columbus worthy of honoring. Despite all of its over-the-top rhetoric, the closest Trump's proclamation comes to tying Columbus to anything resembling our national ideals is the assertion that Columbus's voyages were a but-for cause of European colonization of the new world, which was a but-for cause of the American republic.

That's a grossly inadequate justification. Had Columbus not voyaged west across the Atlantic, soon enough some other European would have. True, history then would have unfolded differently in ways that might have ramified to the present. Perhaps the Spanish, Portuguese, French, Dutch, and English colonists would have ended up settling different lands with different resulting countries. However, the contingency of history has nothing to do with Columbus in particular. It's simply a butterfly effect. Go back far enough in history and virtually anybody (even a butterfly) can be the but-for cause of the world looking the way it does today.

There is one tiny point the proclamation makes that gives pause. It states that "Columbus Day also holds special significance for our incredible Italian-American citizens." Columbus was born and raised in Genoa, and many Italian-Americans take pride in the connection that Columbus Day creates with their heritage. Still, if we wanted to have a national holiday celebrating a great Italian-American, there is no shortage. We could honor Enrico Fermi, Fiorello La Guardia, Joe DiMaggio, or . . . and yes, I mean this as trolling, but not entirely as trolling, . . . Anthony Fauci. Even so, the argument would need to be made for honoring the individual qua individual. We have no national holiday celebrating our incredible citizens whose ancestors came from England, Scotland, Germany, Ireland, China, Nigeria, India, or anywhere else. Dr. Martin Luther King, Jr.'s birthday is of course of special significance to Black Americans, but he is honored for what he did to advance shared ideals.

That leads me back to where I began. If Columbus Day were to be officially re-designated as Indigenous People's Day, that would be anomalous. It might lead to inter-group resentments over competitive victimization. Perhaps it would be better to rename the day for a particular Native American, like Ely Parker or Sarah Winnemucca. Both were real people and thus leave at least somewhat complex legacies, but that is true of anyone a nation chooses to honor. And whatever difficulty we might have in finding an honoree to replace Columbus, nothing justifies continuing to honor him with a national holiday.

-- Michael C. Dorf

The Debate About Banning Fraternities: Overdue Reform and Possible Unintended Consequences

2026-10-09T14:33:23.155-04:00

An issue that has unexpectedly dominated the news in recent weeks is the justified public outrage at Cornell University's wholly unacceptable response to allegations of rape at a 2024 fraternity party, a response that is at long last being exposed and condemned. This entire matter is deeply troubling, and it is a somewhat hopeful sign that the university and local law enforcement -- and now New York State's political leaders -- are being pressured to take it seriously, especially given their earlier attempts to sweep it under the rug (or at least to fail to comprehend its importance, although I find that explanation highly implausible).

(Aside: Donald Trump and his insecure manosphere are anything but outraged, except insofar as he thinks that the men involved "won't get a fair shake," saying "I feel badly" for them. No surprise there.)

Professor Dorf's column this past Saturday considered some of the most important legal issues regarding consent, intoxication, and the conflict among various states' laws regarding whether voluntary intoxication should matter. I highly commend that column to anyone who has not yet read it. Here, I want to address another debate that has arisen as a result of the renewed attention to campus rape. In response to calls to ban fraternities from campus entirely, Cornell University President Michael Kotlikoff responded earlier this week with an argument that upset quite a few people and which thus deserves some scrutiny:

This is obviously an absolutely horrendous and inexcusable situation that occurred in a fraternity. But I have to make the point that this doesn’t only occur in fraternities, I worry about pushing this into the shadows, into houses which we don’t own, which are private houses, which have parties, and which things can occur beyond our purview.

Before beginning my objective analysis, I should start by sharing some subjective thoughts. I never joined a fraternity and never wanted to do so. When I was in middle school, my oldest brother went to college and started the process of joining the equivalent of a fraternity, and even as an 11-year-old, I remember hearing his stories about the hazing rituals and everything else and thinking, "Why would anyone want to be part of that (on either side of the cruelty)?" And even to my pre-adolescent brain, the supposedly fun stuff sounded frankly childish. To be clear, my brother quickly abandoned ship in response to all of that, and I considered it my good luck that I was able to learn from his grim observations.

Those lessons stuck with me, so when I was later applying to colleges, one of my filters was to apply only to schools that had no fraternities. And when I enrolled at Vassar College, I was so annoyed by some of my peers' comments that they wanted to start a fraternity that I wrote a satirical mock proposal for a new fraternity that ridiculed the elitism, sexism, bigotry, and ultimately the utter pointlessness of such organizations. My attitude has not changed in the decades since then.

Although that is simply a personal story, and everyone has their own stories that might be relevant to this situation, I can offer something in the neighborhood of expert testimony when it comes to Kotlikoff's prediction about "pushing into the shadows" the behavior that outrages people of good faith. In a recent Dorf on Law column, I noted that, while I was a graduate student, "Harvard College hired me to create and administer a new program to allow alcohol to be served at undergraduate events, in compliance with a then-new state law restricting such drinking." I brought that up in a context in which there was no reason to go into any detail. Here, however, that experience is useful and relevant.

Why did Harvard College's administrators decide that they needed to create that new program? Massachusetts, like all states at the time that had laws allowing people younger than age 21 to drink, had recently come into compliance with a new federal policy designed to induce states (by threatening to withhold highway funds) to raise their drinking ages. This meant that slightly more than half of college undergraduates who had enrolled straight out of high school would not legally be allowed to drink.

As it happens, the drinking age in Massachusetts had been increased from 18 to 20 only five years before, but enforcement was desultory at best. In any event, it is fair to say that the new 21-year federal requirement changed the realities on the ground, especially on campuses. Because colleges were worried about the legal and insurance liabilities that might ensue from failing to take the new law seriously, they at least needed to put some structures in place to attempt to police the nearly-unenforceable new regime in which college parties would be officially "dry" for half of the students or more.

Notably, the federal law that set all of this in motion had been enacted in response to a surge in public concern over drunk driving. As a result, some colleges considered trying to convince lawmakers to provide a carve-out for residential campuses, on the theory that students stumbling back to their dorm rooms at Barrett Hall after a party at Faber House would not be driving. This idea was quashed quickly, however, because it fairly obviously reeked of elitism. No one wanted to say anything like this: "18-20 year-olds can no longer drink legally, unless they're enrolled at an expensive college with a walkable quad." And thus the law applied to everyone under age 21, regardless of circumstances.

Also notably, this means that the primary concern motivating the attempt to reduce young people's drinking was not the concern that the current Cornell situation highlights. Today, people are rightly focused on the toxic combination of college partying, alcohol (and other drugs), and rape culture. Even back in the 1980's, however, the focus was not entirely on drunk driving. There were some people who viewed the change in the drinking age through the lens of all of the harmful consequences of campus party norms, from binge drinking to property destruction as well as sexual violence.

For those readers looking for a thoughtful and thorough journalistic assessment of Kotlikoff's argument, Garrett Shanley's piece yesterday in The Chronicle of Higher Education is a good place to start. Shanley addresses an important issue implied in Kotlikoff's argument, which is that a ban on fraternities would make it nearly impossible for a university to regulate conduct in such organizations.

In particular, Shanley's piece quotes a professor at Penn State: "Eliminating a fraternity or an entire community may remove one venue for risk, but it does not eliminate the conditions that create it. We need to be more like doctors and surgeons here.” Similarly, a professor at the University of Wisconsin also agreed with Kotlikoff: "He’s not wrong. To the degree that a university ceases all interaction with the fraternity, they do lose any chance of regulation at all."

When Harvard hired me to create from scratch a system to comply with the new law, however, the discussion among the administrators (at least in my presence, although I should say that I have no reason to think that they were hiding anything from me) was about "regulation" in only the most technical sense. That is, any new system could accurately be described as a regulatory regime, because it involved setting up a new structure with rules about how and to whom alcohol could be served at parties in the dorms. Even so, the pressing concern was not with how to regulate behavior but with the "into the shadows" idea more directly. They were concerned that students would drink out of view and end up in worse shape -- and do worse things to themselves and other students -- because furtive drinking is more likely to be done to excess.

And based on what we saw, that concern was well founded. By the time we were able to get the new system up and running, many students had concluded (based in part on extremely bad reporting in the student newspaper, but I digress) that what had previously been "normal" dorm parties would suddenly be all but alcohol-free and thus little more than high school hops. As a result, students were buying loads of alcohol and getting "pre-drunk" in their rooms before going to the parties. Administrators and dorm advisors were in general agreement that the drinking had become much worse than it was before.

Because the College's leaders were worried about that exact problem, they encouraged me to set up the new system in a way that made it simple for of-age students to be served and for all of the students not to feel that they were under surveillance. After a few months, as students came to realize that the new system was not the prohibition that they feared it would be, they came out of the shadows and found a new equilibrium under a system that they certainly did not like but that they could work with.

To be very, very clear, I absolutely understand why people are calling for Cornell and other universities to ban fraternities. As I noted above, I have no use for fraternities and wish that they would go away, ideally because no one should want to be part of one. In addition, there are other issues that should weigh in any such decision, and it could end up being reasonable to conclude that the unintended consequences of a ban are more than justified by the advantages of directly confronting what has for so long been an epicenter of violence against women. My only goal here is to say that, at least based on a rather noteworthy anecdote with which I am intimately familiar, those unintended consequences can indeed be quite bad.

Most crucially, however, we must figure out how to end rape and to bring those who have committed such horrific crimes to justice.

- Neil H. Buchanan

"Innocent" Sanewashing, the Gish Gallop, and Bad-Faith Arguments from Republicans

2026-10-08T10:58:07.849-04:00

"Where do I even begin?" I feel confident that almost everyone reading this column will have uttered that rhetorical question at least once, because we have all been faced with people who spew out a long series of crazy or objectionable statements that pile up so quickly as to leave the listener with the sense of helplessness captured in that plaintive response: Where do I even begin?

Before I get to Donald Trump (because that is obviously where this is going), it is useful to think about what it means to leave one's opponent with too much to say in too little time. For those of us who participated in certain forms of competitive debating in school, "spreading" is the term for saying so much (usually by speed-talking in a timed speech) that one's opponent cannot possibly respond to everything. Because all debaters learn that "silence means consent," the strategy by the spreader is to then spend their entire rebuttal speech listing the many arguments that their opponent failed to address. "I win, because he didn't respond to x1, x2, ... xN."

Even when there is no formal time limit, people are too busy to stick with the conversation for as long as would be needed to get to it all. As one example, I have a cousin who revels in this method of non-argument, slipping explosive statements into conversations that leave everyone around him annoyed (at best). And when anyone tries to respond, he loads up his further responses with even more distractions and detritus. It always ends in frustration, such that people roll their eyes and walk away, leaving him to say, "Oh, so you have no response? Didn't think so!!"

This is, in other words, a variation on a filibuster. Unsurprisingly, there is an academic term for the tactic: the Gish Gallop. Wikipedia describes this as

a rhetorical technique in which a person in a debate attempts to overwhelm an opponent by presenting an excessive number of arguments, without regard for their accuracy or strength, with a rapidity that makes it impossible for the opponent to address them in the time available. Gish galloping prioritizes the quantity of the galloper's arguments at the expense of their quality.

The term "Gish gallop" was coined in 1994 by the anthropologist Eugenie Scott, who named it after the creationist Duane Gish, described by Scott as the technique's "most avid practitioner."

The Wikipedia entry goes on: "The difference in effort between making claims and refuting them is known as 'Brandolini's law,'[5] or informally 'the bullshit asymmetry principle.' A flood of dubious messages such as a Gish gallop is sometimes called 'the firehose of falsehood.'"

All of which brings us finally to Trump. His firehose of lies is even more frustrating than most Gish gallops, because he constantly changes his story -- sometimes even mid-sentence -- and thus leaves a listener unsure whether it makes sense to correct something that Trump kinda-sorta already abandoned. But because he can double back again at any time, it is all impossible to keep straight. Even so, the world is such a ridiculous place that a Guardian story about now-Mayor Zohran Mamdani last year included this: "Another respondent [in a focus group] compared [Mamdani] in one respect to Donald Trump: 'There’s no flip-flopping.'" Again, Trump cannot keep anything straight from moment to moment, changing his answers constantly. But sure, no flip-flopping.

Again, however, the real story is the Gish gallop. Even when Trump sits for interviews with mainstream journalists who might be capable of asking tough questions, he succeeds in fending off any serious inquiry by galloping away with the conversation. Anyone who has watched him on, say, "Meet the Press" for even a few moments will have heard him say things like this: "Well, everyone knows the election was rigged. You know it, everbody knows it, and I'm not going to allow illegals to steal American democracy and allow radical Democrat Marxist communists to laugh at this country while they eat our cats and dogs. And that person who you just quoted, who is a very low-IQ person, hates America."

To repeat: Where would one even begin? To me, the most frustrating part of that rant -- and to be clear, I wrote that not as a direct quote but as an example of how Trump loads up his answers -- is the "you know it, everybody knows it" casual lie. Why is that so frustrating? Because there is no way that any journalist is going to decide to respond to it, knowing that doing so not only inserts the journalist into the story (a big professional no-no) but prevents them from pursuing one of the other outright lies that Trump just spewed out. Even so, it would be satisfying to hear some interviewer say, even once, that "I in fact don't know that the election was rigged, because it wasn't, and you can't get away with telling me what I and other people supposedly think."

Jennifer Rubin has been on a tear lately on the Contrarian substack regarding the mainstream media's failures in covering Trump, and she is obviously quite right to do so. What is especially infuriating is that the Big Media types are, as the Irish would say, up their own arses, completely self-satisfied and willing to give each other awards to convince themselves how great they all are. For example, Harper's last year held a gala celebrating itself for "175 years of fearless journalism and literary excellence." (As a subscriber to Harper's -- I know, what am I doing? -- I received this notification in an email, which does not appear to have been reproduced online.)

Worse, they announced that the gala would "honor eminent figures in the fields of journalism and literature, including A. G. Sulzberger, publisher of the New York Times." Sulzberger has made some of the most ridiculous journalistic pronouncements imaginable in the Trump era, including: "I disagree ... that the risk Trump poses to the free press is so high that news organizations such as mine should cast aside neutrality," even adding that it is "beyond shortsighted to give up journalistic independence out of fear that it might later be taken away." Appropriately enough, the gala honoring The Times's current tosser-in-chief was supported by some of the BigLaw firms that abjectly caved to the Trump Administration back in early 2025.

Again, Rubin has made it clear that she no longer has any use for corporate media, and her columns are therefore essential reading. Last Thursday, for example, she discussed the Media and Democracy Project's "27 media guidelines that aim to shore up independent, effective press coverage, and provide the sort of unvarnished, pro-democracy news that will be essential in this election and beyond." These include:

Express solidarity and stand up for fellow journalists and news organizations when they are attacked or intimidated.

Inform voters of the rights and freedoms they are losing because of government actions that subvert the Constitution and undermine democratic principles.

Call out lies in every piece of reporting.

Avoid “sanewashing.” Don’t normalize abnormal behavior, instead call it out.

Do not contribute to “democracy-washing,” when the reality is that American democracy is under siege and in jeopardy from an authoritarian movement.

This is all great, and I do wish that more news types would follow such advice. Even so, I think that Rubin and others are ignoring the way that Trump's Gish galloping forces everyone -- even those of us who desperately try not to sanitize him -- to be involuntarily complicit in the sane-washing. In a Dorf on Law column last week, I pulled a full quote from Trump's recent, disastrous speech in front of the United Nations. As I pointed out, he riffed for 477 words about his silly effort to rebrand Artificial Intelligence as Super Intelligence, but the full quote included detours into immigration, global warming, and the "Russia, Russia, Russia hoax; the Ukraine, Ukraine, Ukraine hoax; climate change; open borders." (Yes, that was a direct quote.)

I commented in that column that "[t]he term 'sundowning' has recently become a favored way to describe Trump's behavior, but one of the ways the media sanewashes him is that they simply are unwilling to devote the time or space needed to show what sundowning truly means in his case." But I was in large measure being unfair there, because although it is literally true that the media is "unwilling" to expose his insanity, one can hardly blame them. Those 477 words consumed more than three minutes of Trump's speech time, and the realities of nearly all visual media -- no matter how well meaning its practitioners might be -- make it impossible to do anything but pick the shortest clips and use them as examples. But standing alone, the clips sound like English sentences, and they lack context and thus obscure the bigger picture.

On his show last night, Seth Meyers made the rare choice to air a full Trump rant. (Video here, starting at the 5:35 mark.) The topic was Trump's renewed attempt to prove that he is super-smart by mentioning his uncle who taught at MIT decades ago. Meyers began: "Here's the transcript. I'm going to read the entire answer, so we can all fully appreciate just how much of a genius the president is." He then read from the transcript for 38 seconds, and it truly did have a stronger impact than if Meyers had simply quoted one or two extra-gonzo parts of what Trump said.

Even so, this is not a viable strategy for anyone. Even print media can hardly include long quotations from Trump's ramblings. (I all but apologized to readers last week when I included only a few hundred words.) And because Trump's gallops are not only an "excessive number of arguments, without regard for their accuracy or strength" (to re-quote the Wikipedia description) but also circuses of digression, almost no one sees just how demented all of this is.

To be clear, it is possible to do better than most media are currently doing, as Rubin makes clear. Still, no one can truly do it justice. And that is ultimately because, although Trump is especially egregious about all of this, the ultimate problem is that Republicans stopped arguing in good faith -- including offering evasive answers to straightforward questions, such as their "Joe Biden was sworn in as President" rather than "Yes, Joe Biden won the 2020 election" -- making honest discussion impossible. Not only with journalists, but with their political opponents and the American people.

This is, in other words, another way in which people without conscience "win." They are more than willing to attack the questioner, change the topic, and Gish Gallop into the sunset.

- Neil H. Buchanan

Malcolm Gladwell, Confused Originalist

2026-10-07T07:00:00.000-04:00

In 1950, Immanuel Velikovsky published Worlds in Collision, in which he argued that astronomical events such as the supposed expulsion of Venus as a comet from Jupiter occurred within the span of ancient human civilizations, that the resulting planetary interactions led to catastrophes on Earth, and that accounts of an ancient flood in the Bible and the Epic of Gilgamesh and other events that are described in similar terms in different cultures were records of the consequences of the celestial collisions. Velikovsky had no training in science, history, or any other relevant discipline. He was a psychiatrist. Nonetheless, his book made a splash. Scientists knew that Velikovsky's astronomy was bunk but were impressed by his historical account of ancient religious texts and myths. Bible scholars, historians, and archeologists familiar with the relevant materials knew that Velikovsky's reconstruction of ancient events was bunk but were impressed by his science. Very few people were able to discern that Velikovsky's whole theory was nonsense.

Reading well-written and engaging accounts of matters in which I am a non-expert and the author is a non-expert, I sometimes need to remind myself of the cautionary tale that is Worlds in Collision. Which brings me to Malcolm Gladwell's latest book, The American Way of Killing: The Invention of an Epidemic. In it, Gladwell offers insights into gun violence in the United States drawn from interviews with various experts. Here's some of what one can learn from the book:

1) Mass shootings account for a very small fraction of the gun violence in the U.S., and assault rifles account for less of the carnage in such shootings than do handguns.

2) Assault rifle bans as they are almost invariably enacted are mainly performative because they don't ban many weapons that are functionally indistinguishable from the ones they do ban and because assault rifles account for a small percentage of the gun violence (see #1).

3) Declining homicide rates don't say as much about gun violence as one might think because a substantial fraction of the decline is a result of dramatic improvements in medical treatment for victims of gunshot wounds.

4) European cities typically have police forces that are more than twice the size of U.S. police forces but European countries have prison populations much smaller than those in the U.S.

5) Most shootings in the U.S. are unplanned rage events sparked by relatively trivial arguments rather than instrumental to some aim (such as a robbery or for the purpose of silencing a witness).

6) The Second Amendment was a response to the concerns of Southern planters that without it, the new national government would abolish state and local militias, leaving them vulnerable to slave revolts; therefore, D.C. v. Heller misread the Second Amendment.

I already knew some of those propositions but Gladwell is a wonderful writer and illustrates what I already knew engagingly. I found quite enlightening what Gladwell had to say about what I didn't know, but the fact that he bungles what I did know leads me to wonder about the rest of it. I'm not saying that Gladwell is nearly as bad as Velikovsky. I am saying that what I know he gets wrong leaves me uncertain about the material he discusses that I didn't previously know about.

So what does Gladwell get wrong? Let's focus on point 6. Gladwell criticizes the Supreme Court in DC v. Heller for not understanding what a "being" clause (as in "A well regulated militia, being necessary . . .") is. He says that the Court wrongly concluded that what it called the prefatory clause had no relation to the operative clause. But that's not what Justice Scalia's opinion for the Court in Heller says.

The purpose (or as Scalia puts it, the reason for codification of the right) stated by the prefatory (or being) clause is the preservation of the militia; the operative clause serves that purpose by protecting an individual right because if people have arms that they use in their daily lives for self-protection and hunting they can readily bring those arms with them when called to muster. Here's how Scalia puts it in Part II.A.3 of the Heller majority opinion:

[H]istory showed that the way tyrants had eliminated a militia consisting of all the able-bodied men was not by banning the militia but simply by taking away the people’s arms, enabling a select militia or standing army to suppress political opponents. This is what had occurred in England that prompted codification of the right to have arms in the English Bill of Rights.

Gladwell doesn't appear to have even read the Heller opinion or if he did read it, he didn't understand it at all.

I say all of that despite the fact that I think Heller was wrongly decided. Gladwell hints at one reason why but doesn't seem to understand his own argument. At one point he notes that during the oral argument in Heller, Walter Dellinger offered a very different way from Scalia to reconcile the being clause and the operative clause of the Second Amendment. In light of the fact that the "militia" referred to "the body of the people," Dellinger offered that "the people" in the operative clause refers to the people in their collective capacity, i.e., a synonym for "militia." Gladwell explains why this would make sense given that in the late 18th century the subject of a being clause was always the same as the subject of the operative clause. Yet he then completely bungles his explanation of why Heller is wrong by incorrectly characterizing Scalia's opinion as claiming there's no connection between the two clauses.

Meanwhile, Gladwell doesn't mention other lines of argument that have been offered against the reasoning of Heller. There is the point I made in 2000 that the phrase "bear arms" was a term of art meaning to perform military service. I don't expect Gladwell to have read my article, but he might have read the Heller dissent of Justice Stevens, which makes the same point. Gladwell might also have relied on the research of historians like Saul Cornell, who have shown that individual rights to firearms were subject to very substantial regulation in late 18th century America. Here too, if Gladwell didn't have time to read the history literature, he could have read a summary of it in Justice Breyer's Heller dissent.

Gladwell's discussion of Heller thus reaches a sensible conclusion--the Court erred--but bungles the explanation why. He then makes matters worse. He moves on to tell the reader what the Second Amendment is really about: slavery. For that conclusion, Gladwell relies on very important work by my former colleague Carl Bogus, whose 2023 book Madison's Militia expands on research he performed in the1990s, with a special focus on the Virginia ratifying convention. But Bogus's argument is controversial, and Gladwell misunderstands its significance.

The subtitle of Bogus's book is The Hidden History of the Second Amendment. And he's right that before his research, the connection between Southern militias suppressing slave revolts and the Second Amendment was largely hidden--or at least not much discussed. He's also right that in Virginia and elsewhere in the South, preservation of the militia was closely connected to fear of slave revolts. But to say, as Bogus more or less does, and as Gladwell definitely does, that protecting slavery was the purpose for the Second Amendment is to flatten history. What are we to make of the proposals to amend the Constitution to include a right to bear arms from northerners who, like the dissenters in Pennsylvania, had no real interest in slavery? (Pennsylvania legislated gradual abolition beginning in 1780).

In any event, even if the main ultimate purpose of the Second Amendment was to protect against slave revolts, the Amendment's text is not so limited. Suppose new historical research revealed that at the Virginia ratifying convention the debates over the absence of protection for free speech focused mostly on the worry that Congress would use its new powers to prosecute people who defended slavery in print. Suppose new research showed that Virginia ratifiers sought what became the Fourth Amendment because they worried that the federal government would use its new powers to pry into their private sexual exploitation of the women they enslaved. Would such findings really bear on how the First and Fourth Amendments should be interpreted today? Would they have the further consequence--which Gladwell implies for the Second Amendment--that the First and Fourth Amendments should be read out of the Constitution because they are tainted by slavery?

The whole Constitution is tainted by slavery. Is it all void? If not, and one assumes not, at least in a book that is supposed to shed light on how one thinks about problems in the real world, what is Gladwell saying? Gladwell seems to be some sort of originalist when it comes to constitutional interpretation, but he is a very very confused one.

In SCOTUS Global Warming Argument, Conservative Justices are Receptive to "Dormant Nothing Clause" Argument

2026-10-06T07:00:00.000-04:00

In an ideal world, the Earth would not be facing the climate crisis it now faces. In an imperfect but still much better world than the one we inhabit, the United States would be leading or at least participating in global efforts to greatly reduce greenhouse gases. We were heading towards such a world when Congress enacted the misleadingly named Inflation Reduction Act, which would have done a lot of work towards reducing U.S. emissions. However, we are now living under a presidential administration intent on promoting the burning of fossil fuels and discouraging the use of renewable energy. The reversals of federal climate policy under the Trump administration include rescission of the endangerment finding earlier this year and its abandonment of carbon emission regulation of stationary sources under the Clean Air Act just in the last few weeks. There is now effectively no federal regulation of global-warming-causing greenhouse gases. Can state and local governments fill at least some of the resulting void?

So thought Boulder County, City of Boulder, and San Miguel County government officials in 2018, when they sued fossil fuel companies using a legal theory modeled on successful state-court litigation against tobacco companies and opioid makers. The lawsuit charges that the fuel producers long knew of the harms their products would cause via global warming but made them anyway without disclosing what they knew to the public, with harm resulting worldwide, including in the plaintiff jurisdictions. The Colorado Supreme Court allowed the case to go forward. Then SCOTUS stepped in.

As a matter of constitutional law, Congress could choose the suicidal policy of burn-baby-burn at the federal level and preemption of all state-level efforts to combat global warming. But Congress has not made any such choice. And yet, in yesterday's oral argument in Suncor Energy v. County Commissioners of Boulder County, the lawyer for the fossil fuel producers and the lawyer for the Trump administration told the Supreme Court that, actually, it doesn't matter that Congress did not enact legislation preempting state-level lawsuits. Although they tepidly suggested that the Clean Air Act (the same one that the Trump administration now says doesn't authorize greenhouse gas regulation at all) preempts state regulation of fossil fuel production, their primary argument was constitutional. They said that the Constitution makes regulation of interstate air and water pollution an exclusively federal responsibility, absent an Act of Congress specifically authorizing state regulation.

If you're having difficulty recalling what provision of the Constitution gives Congress exclusive authority for regulating interstate air and water pollution, that's because there is none. Rather, under the legal theory offered by the fuel producers and the Trump administration, the principle derives from two other invisible constitutional provisions: equal sovereignty of the states and the prohibition of extraterritorial legislation.

To put that point differently, the constitutional rule advanced by the fuel producers and the Trump administration rests on what we might call "an unmistakable inference from constitutional structure." I put those words in quotation marks to give credit to Justice Alito, who wrote an opinion piece in the Wall Street Journal this past Saturday using exactly that phrase to describe "the presidential immunity [the Court] recognized in Trump v. U.S. (2024)."

Justice Alito is recused in Suncor, so he did not offer any views during the oral argument about whether the constitutional principle that states can't regulate interstate air and water is as unmistakable an inference from the constitutional structure as the principle that a former president can't be prosecuted for ordering the assassination of his political enemies so long as he gives the order to members of the military or federal law enforcement (and thus exercises his core executive powers). But we did hear plenty from other Justices, and it was mostly discouraging.

Chief Justice Roberts offered Earthlings interested in averting the climate apocalypse some reasons for hope by suggesting that the efforts to use Colorado tort law were no more extraterritorial in nature than any other in-state liability for harm caused out of state. But he dashed those hopes by pressing the respondents' counsel on the risk of a flood of litigation should the Court permit the case to go forward.

Justice Thomas started off his questioning of both the fuel companies' lawyer and the Trump administration lawyer by asking whether the Court has jurisdiction. There are reasons to think it doesn't because the Colorado Supreme Court decision is interlocutory and, subject to exceptions that are not obviously applicable here, SCOTUS reviews only final decisions. Perhaps Justice Thomas will vote against the petitioners on this jurisdictional ground, but I wouldn't bet on it.

If Justice Thomas does reach the merits, he, as well as Justice Gorsuch, will have to do some fancy footwork. Both have expressed skepticism about the legitimacy of the Court's so-called dormant Commerce Clause doctrine, which limits states' regulatory power even absent congressional legislation on the theory that Congress can be presumed to disfavor interstate protectionism. They (rightly) point out that the Commerce Clause of Art. I, Sec. 8, is by its terms a grant of power to Congress and not a limit on states absent federal legislation. But that point is even stronger here. At least there is a Commerce Clause in the Constitution. By contrast, the theory advanced by the fuel companies and the Trump administration rests on no constitutional text at all. It invokes what we might call a "dormant Nothing Clause."

Nonetheless, petitioners and their amici are correct that some of the Court's prior cases already recognize the principle they're promoting. Whether they do so as a mater of constitutional law is not entirely clear. Justice Barrett seemed to suggest that the notion of federal exclusivity with regard to interstate air and water pollution might simply be a matter of federal common law. The petitioners' argument is that it's the Constitution that makes such issues a matter of federal common law, subject to modification by Congress. Somewhat to my surprise, attorney Kannon Shanmugam, arguing for the companies, was reluctant to accept Justice Barrett's formulation, which struck me as an alternative way for his client to win. Nothing in this case turns on whether federal exclusivity arises out of federal common law by itself or a constitutional default principle pointing to federal common law.

At the same time, however, various conservative Justices cannot escape charges of hypocrisy by claiming that they're recognizing an unenumerated principle of presumptive federal exclusivity by shifting to pure federal common law as the source. That's because they've also criticized such federal common law in other contexts--not least in cutting back to almost nothing the Bivens line of cases allowing lawsuits against federal officials for civil rights violations. If the Court rules against the plaintiffs in Suncor based on federal common law, the ruling will join the infamous 1988 ruling in Boyle v. United Technologies Corp. (with a majority opinion by otherwise-federal-common-law-resistant Justice Scalia). Together, the cases would stand for the proposition that, with the exception of non-ideological disputes between states over boundaries and the like, conservative Justices are against federal common law, except when it enables fossil fuel companies (Suncor) or defense contractors (Boyle) to evade responsibility for the harms their products cause.

The one conservative Justice to whom I'll give some props in Suncor is Justice Kavanaugh. He repeatedly said, correctly, that the Court's cases already recognize a principle of presumptive federal exclusivity with respect to interstate air and water pollution. Now, one could say, so what? Don't the Justices overrule their decisions with some frequency? Didn't Justice Kavanaugh himself include a list of important cases that overruled precedent in his concurrence in Ramos v. Louisiana? And if all of that is true (which it is), then why am I giving props to Justice Kavanaugh?

The short answer is that he offered a special reason to adhere to stare decisis in Suncor that is consistent with one of his recent votes for a non-conservative outcome. He said during the Suncor oral argument that the burden should be on Congress to authorize state regulation of greenhouse gases, not on Congress to forbid such regulation, given that this is the burden the Court has previously announced and on which Congress was entitled to rely. That is closely related to the reason he gave for voting to invalidate Trump's Birthright Citizenship executive order on statutory but not constitutional grounds in his Trump v. Barbara concurrence: congressional reliance on the Court's pronouncements.

In saying that Justice Kavanaugh's willingness to invoke stare decisis here is legitimate in light of his Barbara concurrence, I'm not saying it's correct. The respondents argue that the principle of federal exclusivity with respect to interstate air and water pollution doesn't apply at all to a regulation on the production of fossil fuels. They also have a decent argument that when Congress enacted the Clean Air Act, it superseded the implicit federal common law displacement (based on the dormant Nothing Clause) of state law. If so, the question is simply one of preemption--and the Clean Air Act doesn't by its terms preempt all state law that have an impact on air quality. So, even adherence to the precedents Justice Kavanaugh cites is consistent with allowing the case to go forward. And it's worth noting that nobody else joined Justice Kavanaugh's Barbara concurrence, so it doesn't do anything for any other Justice who votes to disallow the lawsuit.

I'll end where I began. The lawsuit at issue in Suncor is not a first, second, or even third choice option as a policy matter. It would be much better if we had a federal government that treated the climate crisis with something like the urgency it deserves. Even a Democratic sweep in the midterms won't result in such a government, so we will need to wait until at least 2029. In the meantime, the planet heats. The probable victory of Bolsanaro Jr. in round 2 of the Brazilian election will make matters worse. The likely result is a flood: not a flood of litigation, as the Chief Justice fears, but literal floods whose likelihood and severity are increased by global warming. Allowing the Suncor litigation to go forward would not do much to slow global warming, but that's no excuse for blocking it. The dormant Nothing Clause doesn't justify the do-nothing approach to the climate catastrophe.

-- Michael C. Dorf

The Biggest Damn Fool Mistake: Trump and the Roberts Court

2026-10-05T07:00:00.000-04:00

Today the Supreme Court opens its October 2026 Term, though the idea of a term with a beginning and an end is mostly ceremony now. In the shadow docket era, the Court decides important and complicated issues without full briefing or oral argument, and often with the justices languishing at luxury getaways, domestic and abroad, some of them subsidized by Harlan Crow or Paul Singer. Since the last term's final opinions came down, the Court has let construction of the President's ballroom continue on the ruins of the East Wing, and it allowed deportations to third countries to resume over a lower court's finding that migrants were not getting a fair chance to raise fear of torture.

And yet the President cries foul. Asked by Time whether he regrets nominating Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett, Trump said: "Yeah. Yeah. What can I do? I put them in. They voted against me too often." He added, "I do like loyalty, yeah." Two weeks earlier, after the Court refused to let the Postal Service rewrite mail-ballot rules fifty days before the midterms, he posted: "These are not the people I interviewed to serve on the United States Supreme Court, they are merely a shell of their original selves."

If only.

In under six years in the White House, Trump has named a third of the Court. Jimmy Carter served four years and named no one. Trump had considerable help. In 2016, Mitch McConnell held Justice Antonin Scalia's seat open for almost a year so the voters could decide. In 2020, with Justice Ruth Bader Ginsburg's seat open and ballots already being cast, Justice Barrett was nominated and confirmed in a manner of weeks.

Dwight Eisenhower is said to have called his choice of Earl Warren "the biggest damn fool mistake I ever made." Historians debate whether he said it; nobody debates the disappointment. Chief Justice Warren, a former Republican governor, wrote Brown v. Board of Education (the unanimous 1954 ruling ending legally mandated school segregation) and led the most liberal (maybe the only liberal) Court in American history. A second line, "I have made two mistakes, and they are both sitting on the Supreme Court," adding Justice William Brennan, rests on thinner evidence still, though a 1957 diary entry by Justice Harold Burton confirms Ike's "disappointment" with both.

Nixon picked Harry Blackmun, who wrote Roe v. Wade three years later. Ronald Reagan nominated Anthony Kennedy who wrote the only four Supreme Court decisions in American history affirming the rights of gays and lesbians. George H.W. Bush's chief of staff called David Souter a "home run" for conservatives. Two years later Souter co-wrote the opinion partially reaffirming Roe in Planned Parenthood v. Casey, and the right adopted a rallying cry: "No more Souters."

Against those benchmarks, the distance between what Trump wanted from his three justices and what he received is barely a rounding error.

With all three in the majority, the Court gave him criminal immunity in Trump v. United States, making him the only president in history to benefit from a shield he is now putting to use in myriad ways. In Trump v. CASA, written by Barrett, the Court ended the nationwide injunctions lower courts had used to halt Trump’s policies. Just this year, it overruled a 90-year-old precedent in Trump v. Slaughter (holding that the President may fire the heads of independent agencies at will), and in Mullin v. Doe it cleared the way for Trump to strip Temporary Protected Status from roughly 350,000 Haitians and 6,000 Syrians while barring courts from reviewing most of how the government got there. A year ago, in Noemv. Vasquez Perdomo, it cleared the way for roving immigration sweeps in Los Angeles, and Justice Kavanaugh wrote that "apparent ethnicity" could be a "relevant factor" in a stop, giving the country the phrase "Kavanaugh stops."

On the emergency docket, Trump's administrations have filed 82 applications in under six years, 41 in his first term and 41 more in less than two years of his second. The Bush, Obama, and Biden administrations filed 27 combined, across twenty years. Lower courts, including his own appointees, rule against Trump far more often than the Supreme Court. A Court Accountability study found he wins about nine times in ten at the Supreme Court.

The losses are the outliers, and so were the asks:

He claimed a 1977 emergency statute that never uses the word "tariff," "duty," "tax," or any other synonym for those words authorized him to tax nearly every good entering the country.
He asked the Court to read into the Fourteenth Amendment a limit on birthright citizenship that its text and 128 years of precedent foreclose.
He tried to fire a sitting Federal Reserve governor, Lisa Cook, without the process the law requires.
He sought to federalize the Illinois National Guard and send it into Chicago.
He deported Venezuelans under the Alien Enemies Act, a 1798 wartime statute, on roughly a day's notice.
He wanted the Postal Service to rewrite election rules less than two months before Election Day.

Despite the major weaknesses of the legal arguments supporting Trump’s positions in these cases, his justices rarely said no together. Kavanaugh would have upheld the tariffs. Gorsuch would have rejected the facial challenge to the birthright order and the objections to the Chicago Guard deployment. Gorsuch and Barrett would have let him fire a sitting Fed governor; that case went against Trump 5-4. Of his marquee losses, only the Postal Service rule, fifty days before an election, drew all three against him.

“Legends both”

To understand what the President clearly wants his appointees to be, look no further than Justices Clarence Thomas and Samuel Alito, whom the President calls “legends both.” In the mail-ballot case, U.S. Postal Service v. California, Alito dissented, joined only by Thomas.

Both justices market themselves as textualists, originalists and federalists. Yet they dropped all three methods the moment they got in Trump’s way. The Elections Clause says the rules for congressional elections "shall be prescribed in each State by the Legislature thereof," subject to modification by Congress. They would have allowed Trump to bypass that Clause entirely by invoking the Post Office's general authority to regulate the mail. Originalism? The Framers, fresh from a revolution against a concentrated executive, kept the executive out of running elections; Thomas and Alito would have handed the executive sweeping, unilateral power in the midterms. Federalism? When the States told the Court, that in addition to its unconstitutionality, the overhaul was logistically impracticable, Justice Alito wrote, "I take that problem very seriously, but it is not enough to convince me to deny the application."

Eisenhower's "mistakes" gave the country a far more liberal Court than Eisenhower wanted. Trump's justices have given him immunity, CASA, Slaughter, the effective end of the Voting Rights Act, the TPS terminations, Kavanaugh stops, a ballroom, the end of affirmative action, the end of abortion rights, and roughly a .900 batting average. What they refused him was the power to tax by decree, to unmake citizenship by executive order, to fire a Fed governor at will, to send troops into Chicago, and to run the midterms through the Postal Service.

All the conservative justices favor a country run by Republicans instituting GOP policies. All but Thomas and Alito do not, however, favor an unlimited presidency completely independent from the two other branches. That line, which the Court is barely drawing, derives much more from institutional and personal self-interest than partisan disloyalty.

The Supreme Court term that begins today is already full of important cases involving climate change, assault weapons, and the separation of church and state, among others. Given that the midterms will be long over by the end of the term, expect a virtual sweep for the President, with maybe an outlier here or there. Either way, Trump will complain.

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by Eric Segall and Guest Blogger James Sample, who is a Professor of Law at Hofstra University.

Professor Sample is on the Board of Advisors of Georgia State University's Emmet Bondurant Center for Constitutional Law, Practice, and Democracy. Professor Segall is the Executive Director of the Center.

This essay also appears at Who Decides Who Decides? where Professor Sample writes regularly.