Dorf on Law

Lake Ontario, $5K Giveaways, and Bestiality: Are We Being Distracted by Trump's Inconsequential Craziness?

2026-09-18T07:00:00.000-04:00

My latest Verdict column was published on Tuesday. It addresses President Trump's proposal to pay every adult U.S. citizen $5,000. To summarize: Trump has no power to do this without congressional authorization; such authorization would be a very bad idea because injecting over a trillion dollars into the economy would fuel inflation that would likely eat up any benefits; the giveaway would be regressive because inflation is felt more by the poor than by the wealthy.

The new column follows on the heels of my previous Verdict column, accompanying essay on this blog and then a follow-up essay on the blog on Trump's renaming of Lake Ontario. In the Trump-is-stranger-than-fiction category, my first blog post on the Lake Ontario issue was titled When Will Trump Try to Change "New Mexico" to "New America?" The answer turned out to be six days later.

It is no doubt entertaining to ponder the legal and policy questions posed by some of Trump's most outlandish ideas. It's also fun to delve into the absurdities from the team of sycophants and hacks who fill the top ranks of his administration. For example, much of the media attention paid to FBI Director Kash Patel's appearance before the Senate Judiciary Committee earlier this week focused on exchanges about the Bureau's recent decision to no longer disqualify job applicants who have previously engaged in bestiality. Funny, right?

I even thought about writing an essay for this blog with the title "Kash Patel is Wrong About Almost Everything, But He's Right About Bestiality." That's because Patel's explanation actually made sense. Prior to the policy change, the FBI told applicants that "Engagement in prostitution or bestiality" was an automatic disqualifier. My first thought was that this had to be limited to people who were convicted of crimes involving prostitution or bestiality, but that turns out not to be so. Here's the old FBI FAQ page that quite clearly identifies felony convictions as a separate category. One could literally have "engaged in prostitution or bestiality" in the sense of having been forced into it and nevertheless be disqualified. So the prior rule was grossly unfair.

If I were to write that full essay on Kash Patel and bestiality, I might quibble with the notion that someone who is forced to do X has "engaged" in X. The word "engaged" can--and in this context undoubtedly should--connote some voluntary act. But Patel nonetheless had a point. Even if the FBI in screening applicants would not disqualify someone who had been trafficked against their will and forced into prostitution or bestiality, an applicant who had been the victim of trafficking could read the FAQ page and think they'll be automatically disqualified and so not even apply.

But do you see what I did there? Even in an essay on the risk of getting distracted by the relatively inconsequential nonsense emanating from Trump and his administration, I got distracted enough to write three paragraphs (four if you count this one) about Kash Patel and bestiality without getting into the main concern one should have about his leadership of the Bureau: he has purged experienced agents and politicized the use of federal law enforcement resources.

Thus, I worry that I am being distracted by the flood of amusing but ultimately stupid actions by Trump and his administration and thereby failing to focus sufficient attention on the more consequential outrages that they are perpetrating. A short list of those consequential outrages would include: the multi-pronged effort to thwart U.S. democracy; censorship of criticism; the disastrous war of choice with Iran that has caused numerous civilian and combatant deaths, undercut the security of the U.S. and its allies, and led to shortages of fuel, fertilizer, and other essentials in the developing world; multiple policies that seem designed not only to cut back on efforts to slow global warming but to accelerate it; likewise not merely ending efforts to combat disease but spreading it; rampant corruption; blithely ignoring the risks posed by AI; and of course, tariffs, more tariffs, and still more tariffs.

In my own defense, I'll say that I haven't been ignoring any of the foregoing serious actions by Trump and his minions. I've addressed all of them in some form or another, in many instances multiple times, on this blog, in my Verdict columns, in my scholarship, in public testimony, and in a considerable amount of pro bono consulting I've been doing with lawyers litigating against the administration in various respects. So, on a personal level, my defense, I suppose, is that I'm doing my bit but I need a little comic relief now and then.

However, in raising the distraction question, I don't really mean to be asking whether I personally am falling for the shiny objects of outrageous but ultimately clownish nonsense and thus taking my eyes off the prizes of democracy, human rights, a livable planet, and the like. I'm asking for the society and culture at large.

With respect to a great many people, however, the question doesn't make sense. That's because they simply aren't paying attention to any political or policy news. According to a reliable survey the results of which were released earlier this week, more than a third of Americans cannot name all three branches of government. More evidence from an earlier survey: "1 out of 3 people can't name their governor, 4 out of 5 can't say who their state legislator is and roughly half don't know whether they have a uni- or bicameral legislature."

Meanwhile, it's safe to assume that some substantial fraction of the people who are minimally familiar with the operation of government nonetheless aren't following political or policy news closely. From Bill Clinton's "it's the economy, stupid" to the contemporary focus of politicians on issues of affordability, sophisticated political actors apparently have concluded that voters care almost exclusively about pocketbook issues.

Of course, many voters do stay informed about a wide range of subjects, so one still might worry about distracting them with stories about Trump renaming bodies of water and making outlandish campaign promises or about his FBI Director, Secretary of "War," and Health and Human Services Secretary beclowning themselves by, respectively, talking about bestiality, requiring service members to meet his weight and grooming standards to be seen on camera, and working out in jeans. If only some of the news is going to filter to the mass of the public, shouldn't it be all more serious stuff?

Maybe, but we all need and want entertainment too. Moreover, at least some of the less serious but amusing stupid things Trump and his administration do can help reinforce the more serious matters. In the latest NY Times/Siena Poll, both registered voters and likely voters said the label "elitist" was a better fit for Republicans than for Democrats by a margin of 10 percentage points. That's a shift from 2022, when the numbers were essentially tied and represents an important opportunity for Democrats--whom Republicans have for years been trying to characterize as elitist. Not every story of lesser consequence reinforces the message that Trump and the Republicans are elitist and thus out of touch with voters, but many do.

Thus, stories about Trump's effort to rename things either for himself or simply because he believes he is entitled to decide everything for everybody, reinforce the (very accurate) image of Trump as egotist who thinks of himself as above the People and the law. So do his building projects. These and other stories of Trump as rich guy who occasionally pretends to care about ordinary people but obviously doesn't dovetail very nicely with more serious matters--such as his rampant corruption and weaponization of the Justice Department and other aspects of the federal government.

Admittedly, not every story of Trump or someone in his administration acting as a relatively low-stakes buffoon reinforces the instances of his more consequential and nefarious actions, but almost every such story can be made to fit into the frame of one of the many serious threats Trump and Trumpism pose. Take, for example, Trump's absurd reaction to the Fed's unanimous and clearly correct decision to raise interest rates this week in the face of increasing inflation fueled by Trump's tariffs and the Iran war he started. Obviously, Trump wasn't going to accept responsibility for the economic conditions that led the Fed to raise rates. Nor was he even going to acknowledge that a rate hike was the right call; he thinks the Fed's benchmark rate should be 1 percent (which is plainly nuts).

Ridiculing Trump as an economic ignoramus is easy enough, but it turns out that even this story fits nicely into the frame of Trump as self-centered egomaniac unconcerned about others. His main reaction to the Fed rate hike was to make it about himself: “The problem they have is that we have the greatest economy in history … so they’re raising that only for political reasons, and that’s a raise against Trump.”

Bottom line: Enjoy the random acts of stupidity from Trump and his ship of fools; they're entertaining and perhaps helpful in arousing the People to the much greater harms this mad king inflicts.

-- Michael C. Dorf

What Fear (or not) of Crossing Borders Says About the United States Today

2026-09-17T11:00:00.000-04:00

Not long ago, traveling to the United States for business or academic purposes was a relatively simple matter for non-US citizens. Perhaps more accurately, despite all of the complexities involved in obtaining the relevant documents, bookings, funding, and so on, there was at least one question that was so basic and obvious that it simply never came up: Will I be turned away at the border, or even detained for days, weeks, or months?

Those days are long gone, ending on January 20, 2025. And although most of the Trump regime's activities are aimed at poor people and people who are not White Christians, there have been notable examples of people who do not fit the profile, including a 35-year-old Canadian actress who was held in detention for twelve days after applying for a temporary visa to work in the US. She had no criminal record.

Similarly, a British couple in their sixties were both held in detention for 42 days, with the wife held even though only her husband's visa had expired. The article linked in the previous sentence includes other examples, focusing on people who not only are not criminals but who might have had very good reason to think that their being fluent in English, White, and not poor would have kept them out of the dragnet set up by Trump upon reoccupying the White House. (The British woman said: "Individual ICE agents get money per head that they detain – the guards told me that." ICE denies that assertion, of course.)

Even short of being imprisoned, the stories of not-the-usual-suspects types of people being hassled (at best) started to make the rounds. For example, "[a] French scientist was denied entry to the US this month [March 2025] after immigration officers at an airport searched his phone and found messages in which he had expressed criticism of the Trump administration, said a French minister." The scientist had flown here to attend an academic conference.

All of this set the background for a two-part column that I wrote last Fall here on Dorf on Law. There, I described how the academic organization with which I am most familiar (the Law & Society Association, or LSA) had reacted to inquiries from scholars who are based outside of the United States, asking to be able to attend LSA's annual conference virtually. Without repeating the details here, it is sufficient to say that the decision-makers at LSA handled the situation in both 2025 and 2026 very poorly, in the latter case refusing to provide even the wholly inadequate virtual option that it had thrown together the year before.

All of which communicated a clear message, in essence: If you want to attend the huge annual conference sponsored by an academic organization -- one that loudly and proudly bills itself as dedicated to "connecting sociolegal scholars from around the world" -- then you have to get on a plane and take your chances crossing the US border, because we are not going to give you an alternative.

In Part 1 of my column discussing all of this, I added pointedly that

LSA is not an organization that makes merely pro forma claims about wanting to become a more international body. It has, in fact, as a matter of policy held its conferences every few years in non-US cities. True, those cities are not part of the Global South (with the lone exception of Mexico City in 2017), but the non-US conferences are explicitly part of the association's stated efforts to expand its conversation beyond only US-based scholars.

As it happens, LSA's next annual conference has now been announced, and it will be held in Hong Kong in June 2027. I organize slates of tax-related, interdisciplinary sessions at the conference every year, so I sent out my annual email calling for submissions yesterday. Here is what I wrote to my list of several hundred potential attendees:

For those of you who have been waiting for an opportunity to join us at a Law & Society Conference outside of the United States, I have good news for you!

The Law & Society Association (LSA) will host its next Global Meeting from June 22 to 26, 2027, in Hong Kong. ...
The good news that I mentioned above is that the conference will be in-person in Hong Kong from June 22-25, 2027. This means that those of you (actually "us," because this has affected me as well) who have quite reasonably worried about entering the US under the current policy situation will be able to attend the conference without having to worry about any of that.

For the record, LSA has added a unique virtual option for 2027, sticking with an in-person-only requirement for all but the final day of the conference, but then making that last day all virtual. That, however, is not my focus here.

Instead, I want to share an emailed response that I received from a senior tax scholar in the UK, who articulated a point that I had thought about mentioning but chose not to include in my invitation email:

I can't help musing on how Hong Kong has apparently become more acceptable than the USA. I totally get your concerns about the USA, but last time I was in HK there were students and others on the streets protesting the lack of democracy and there are still people in prison who I don't think should be, plus many have fled to the UK amongst other places as a result of the politics in HK. But I know views differ.

It does not affect me as I shall not be submitting anything or attending, but I did think it was worth mentioning this as I found it somewhat ironic.

Although I have no doubt that views differ, I am in complete agreement with what my colleague wrote. It is indeed ironic that people have enough concerns about traveling to the United States with Trump in charge that the thought of going to Hong Kong somehow looks like (in my words) "good news" -- with an exclamation point.

Is this simply a matter of salience, with people like me seeing the US in a negative light merely because we are familiar with it and might be prone to overstating how bad the Trumpian style of authoritarianism is? Possibly, but I think not.

First, there have been (and still are) many people being held in American prisons and detention centers who, in my colleague's phrasing, "I don't think should be." The US under Trump is trying to seize and deport one million people per year, and many of them end up in prison or other detention, where many have died. Some people were treated brutally for no other reason than having written or said things that the Administration dislikes.

In July of this year, more than half of ICE arrests were of people who had not been convicted of -- or even charged with -- a crime. And even those who are not ultimately deported are subject to inhumane treatment, including conditions in detention that shock the conscience (of those people who have consciences). I have not seen any comparisons between the US's treatment of wrongly seized people and how things are handled in Hong Kong, but at the very least, it is clear that the US is acting in ways that we once would have described as only imaginable under an authoritarian regime like China's.

Second, the audience for my email was specifically people who are not to my knowledge likely to be harassed or jailed when traveling to Hong Kong. I will, of course, monitor this closely in the coming months, but the Chinese government simply does not seem to care about people who show up for a couple of days to attend professional events. Again, however, I could be wrong.

Third, plenty of Americans have also fled to the UK and elsewhere, for what amounts to the same reasons that people in Hong Kong are fleeing what had been their home.

In any event, I write all of this to agree with what my British colleague wrote. Indeed, I think it fair to imagine that she used the word "ironic" precisely because it has in fact become shockingly accurate to make the comparison.

People like me follow the minutiae of US news cycles, and we chase shiny objects like Trump's failing health, his obviously false promise to pay people $5000 each if Republicans win the midterms, gerrymandering, and so on. But while all of those stories are important in their own ways, the touchstone when assessing the current government should be that the US now scares countless people to the point where they choose not to enter the country, even for something as bland as an academic meeting.

Most fundamentally, the country's immigration system has become a dystopian nightmare, a change in policy that was motivated by bigotry but is being pursued so maniacally that it can now be dangerous for anyone to be anywhere at any time. No wonder people no longer want to be here.

- Neil H. Buchanan

Fears of Extinction Events, with and without Plausible Stories to Back Them Up

2026-09-16T15:21:20.887-04:00

Are human beings (and maybe all other living things) going to be killed off ... soon? And if so, what will cause the catastrophe to come about? My working title for this column was "Constitutional Crises, Debt Crises, and Skynet," but for reasons that will soon become clear, that framing ended up being too narrow. We humans have spent centuries conjuring up various ways in which the end might arrive, proving ourselves to be quite imaginative in coming up with an impressive range of end-times scenarios.

Anyone who has been even casually following the news recently will have seen the sudden wall-to-wall coverage of apocalyptic warnings by various insiders from the world of Artificial Intelligence, or AI. (That label is still a misnomer, the accurate term being Large Language Models, but I remain unwilling to tilt at that particular windmill.) Semantics aside, the story that has understandably caught everyone's attention comes from a software engineer who resigned from one of the AI companies, announcing that there was a decent chance that AI would kill all of humanity soon.

Some reports are saying "within a decade," whereas others say "by the end of the decade," which is a fairly large difference, given that the current decade will end in three years, three months, and fourteen days, but of course all of that is entirely speculative and not meant to be precise. Soon, or soon-ish, is the message. The point is that now, politicians in both parties are freaking out, whereas Donald Trump has decided to embrace AI fully and claim that he alone can protect us from any problems posed by a technology about which he knows absolutely (and maybe even literally) nothing. I know that we all feel better now.

In my recent attempts on Dorf on Law and Verdict to debunk the hype around the ridiculous "$40 trillion US government debt will doom us all" news cycle (perpetrated by debt scolds and their allies at The New York Times), I expanded on a point that Paul Krugman raised about the doomsday predictions: What, exactly, is the mechanism? That is, a convincing panic-inducing story cannot merely be that, say, "government debt will cause a bond market crisis that will kill us all."

As I put it in that Verdict column, "when we are told that we must at all costs avoid a purportedly horrible fate, we should at least demand to know exactly how likely that fate is and how bad it would be." And we cannot know any of that without having at least a decent guess as to what the steps are that will take us from A to World War Z.

Speaking of which, it is obviously not only AI and government debt that have grabbed people's attention as possible end-of-days stories. For decades, zombie movies have captured our imagination, with variations that are fully mystical (undead zombies) as well as those that at least purport to have a cause (rage zombies), with the unjustly maligned movie "World War Z" falling into the latter category. And long before zombie movies came along, there have been stories about vampires and other beings that might or might not entirely wipe out humanity.

Actually, once I started to think about the many ways in which humans have imagined their own erasure, I felt overwhelmed by the ubiquity of it all. Meteors crashing into Earth, alien invasions (of the "Men in Black" sort, not the Stephen Miller fascistic sort), and on and on have always been with us.

Is the AI story just another example of "Jaws," the 1975 movie thought to be the first true summer blockbuster, which scared the living hell out of people, wrongly causing them to believe that shark attacks are an important thing for everyone to fear?

To be clear, any Armageddon story can be contrived with some kind of mechanism underlying it. Christian evangelists have said for as long as anyone can remember, for example, that God will inflict his wrath on people who tolerate "the gays." Mechanism: (1) Humans defend LGBTQ+ civil rights, because all people deserve dignity, (2) God gets angry, (3) The All Powerful One ends the world that He created, most likely in a fire of damnation.

On a more prosaic level, the oft-invoked scary crisis regarding US government debt does have a story that not only might one day happen but indeed has happened a few times in history, with a government issuing so much debt that the financial markets lose all confidence in the country in question, selling off financial assets and thus destroying the economy by making assets worthless.

As I noted in my Verdict column, however, that story is not enough to cause reasonable people to start digging fallout shelters. (Oh right, nuclear war is another favorite disaster scenario!) I quoted Krugman's response to the possibility of a Greek-style crisis happening in the United States, which (unlike Greece) issues debt in its own currency: "As far as I can tell—and I’ve studied the issue at length—there are no historical examples in which this happened.'"

Perhaps I should call myself on the carpet here as well, not in predicting a government-debt-fueled financial crisis but rather a constitutional crisis coupled with a monetary crisis. The disaster scenario in my writing (frequently co-authored with Professor Dorf) over the years concerns Republicans' hostage-taking via the debt ceiling. I/we have noted the inevitable constitutional crisis that would follow from the President being forced to choose among only illegal options, putting him at unavoidable risk of impeachment and removal from office.

That would be plenty bad, but I/we never claimed that that alone would be an extinction event. We did, however, call out the people (including Krugman, as it happens) who were saying that the President could avoid all of that by having the Treasury embrace the Big Coin Option -- exploiting a supposed legal loophole to mint a platinum coin carrying any arbitrarily large nominal value. That, we said, would create a monetary crisis and thus destroy the global economy.

How? The mechanism there is: (1) A President suddenly says that he can create trillions of dollars at his whim, (2) people are confronted by the fact that money is a social delusion (necessary and useful, but still a shared delusion), (3) being forced to acknowledge the illusion makes people no longer think that their money is valuable, (4) everyone loses the trust on which any financial system works, (5) economic collapse.

I still believe everything in that particular disaster scenario, even though there are no examples of it happening before. But even though there has never been a Big Coin-triggered crisis, history is littered with examples of money losing value the second that people realize that other people no longer accept whatever they had been happily accepting as money. (This problem can happen with gold and other commodity moneys as easily as it can with government-printed currencies.)

What does any of this tell us about the sudden panic over AI? To their credit, quite a few people have been asking, in essence: "How, exactly, will this happen?" It is not enough merely to talk about Skynet and Terminators, with the possibility (which science fiction writers have been toying with forever) of the machines at some fateful point deciding that humans are the problem, or at least expendable.

In that sense, there is at least the germ of an idea of how the AI extinction event would work, with machines becoming capable of controlling systems and taking steps (whether "conscious decisions" or not) that kill people. But could happen here is exactly the same as in the government-debt crisis scenarios. The issue is whether it will happen in any plausible scenario.

How is that issue being addressed? Not particularly well.

In a recent BBC interview, for example, a co-founder of Anthropic offers little more than the warning that AI is potentially dangerous. Starting at the 1:12 market of the linked video, he says that "... the technology's got substantially more powerful, and those risks which were once academic or theorized, we can now see the early signs of them." The interviewer asks him to be more specific (asking about "swarms of AI taking over the internet" as one example), but the response was fairly unhelpful: "The basic risk is, how well do you fancy your chances at being able to deal with the risks of a system that is a hundred times smarter than the smartest person on the planet? I think that your chances of dealing with that and getting out in a safe way is pretty low."

Sure. But what could happen, exactly, and how? "[Y]ou need to control AI technology because you're making things that might be smarter than people. Things that are smarter than people could be really, really, really dangerous." Hmm. Later in the video (at the 3:35 mark), the closest we get is a reporter quoting other experts saying that "unchecked, the economic impact could be unprecedented white-collar unemployment."

I am genuinely fighting my urge to be snarky here, because the guy from Anthropic is not obviously and completely wrong. Yes, powerful things can get out of control, and he does say that what he is looking for is a policy response that requires "kill switches" to keep human beings in control. That is all to the good, but the skeptic in me cannot help but notice that the doomsday scenarios still sound an awful lot more like "We're all gonna die!!" than convincing hypotheticals of cause and effect.

Meanwhile, a colleague pointed out to me in a recent conversation that we have an actual doomsday scenario that is fully and obviously in motion as we speak, one for which the mechanisms have been laid out for decades but that has been allowed to grow worse every day. She was, of course, referring to the climate crisis.

And it is only fitting that Trump's intervention on the pro-AI side of the recent panic pointedly compared it to climate concerns. As the AP reported two days ago: "'AI taking over the World, destroying Humanity, and all other things bad, is a HOAX,' Trump posted on social media, later suggesting that those calling for guardrails on the technology had also warned about climate change, which he also called a hoax."

So that is the ignoramus's version of skepticism. Outside of that, however, there is nothing wrong with adjusting our assumptions and becoming more cautious when it comes to AI. When the doomsayers are able to be less vague, that should change the conversation. But will it? The Trump approach on the environment (which has been the Republican Party's approach for decades) simply rejects all bad possibilities out of hand, because it is inconvenient to them to admit the truth. They might already have decided to do the same with AI.

For everyone else, however, even a great deal of skepticism should not be confused with a stubborn refusal to look at evidence and arguments. On AI, I remain skeptical. It is surely more likely to kill us off than a meteor strike or the rise of the undead, but we have a lot of work to do to figure out the genuine dangers and thus the best responses.

- Neil H. Buchanan

In the Vote-by-Mail Case, Justice Alito is Back to Victim Blaming and Guerrilla War

2026-09-15T10:02:28.136-04:00

Yesterday the Supreme Court issued a one-paragraph order rejecting the Trump administration's application for a stay of the injunction against implementation of the Post Office's new rule that would have likely disenfranchised a great many voters, deterred many others from voting by mail, thrown the midterm elections into chaos, and--in light of asymmetrical use of mail voting by Republicans and Democrats since the pandemic--skewed the midterm election results in favor of Republicans.

The decision was welcome news for big-D Democrats but more importantly for small-d democrats, i.e., people who care about preserving what's left of American constitutional democracy. We can breathe a sigh of relief, albeit a small one, given that Trump and the Republicans continue to make further anti-democratic maneuvers. They have already used mid-decade hyper-partisan gerrymandering to tilt the playing field and might send ICE and other federal law enforcement officers to the polls, seize ballots, and even unleash a January 6-style mob.

Even so, the fact that six Justices, including three Republican appointees, unequivocally rejected an important aspect of Trump's war on democracy is news worth celebrating. Accordingly, I hereby celebrate.

But what about the other three Justices? Justice Kavanaugh equivocally rejected the Trump administration's stay application. In what I'll acknowledge as principled consistency with his invocation of the so-called Purcell principle in cases favoring Republicans, here Justice Kavanaugh concurred in the order on the ground that the application came too close in time to the election. Thus, he found that implementation of the Post Office rules at this late date would be arbitrary and capricious. Kudos on this point.

It's nonetheless disturbing that Justice Kavanaugh also said that he might well reach a different conclusion on a more relaxed timetable. Based on the briefs submitted to the Court, he said that there's "at least a fair prospect that the final rule falls within the Postal Service’s statutory authority," despite its obviously pretextual basis.

What pretextual basis? The Trump administration contended that the Post Office rule is aimed at detecting and combating voter fraud that the best empirical evidence shows is essentially nonexistent. It cannot possibly justify the Post Office's sweeping measures that would disenfranchise something like thousands of eligible voters for every case of fraudulent voting it detects. And yet, Justice Kavanaugh thinks there's a fair prospect that the final rule is within the Post Office's authority.

Justice Alito, joined by Justice Thomas, goes further: he doesn't think there's a mere "fair prospect" that the Post Office's rule is legal; he thinks the Trump administration "is likely to succeed on the merits."

In part that's because Justice Alito thinks the plaintiffs lack standing but he also says the government should probably win on the actual merits and that the balance of the equities favors the government. Let's examine that last point closely because it is the most disturbing part of the Alito/Thomas dissent. Justice Alito writes:

the Government has a strong interest in enforcing the rule, and implementing it will also “enhance the visibility of Federal Ballot Mail” in order to better detect election fraud. 91 Fed. Reg. 54972. On the other side of the balance, the plaintiff States invoke the practical effects of implementing the rule close to the midterm elections. I take that problem very seriously, but it is not enough to convince me to deny the application.

Neither side of that analysis is persuasive. On the government side, Justice Alito cites the Post Office's own regulation claiming that its rule will enhance the visibility of Federal Ballot Mail. But why is that important? Is there currently some problem with the visibility of mailed ballots? Even Justice Alito doesn't suggest that there is. Instead, he acknowledges that the supposed justification for the Post Office rule is "to better detect election fraud." But he cites no evidence, because none exists, that there is any substantial problem currently being caused by election fraud via mailed ballots. So the harm to the government from failing to grant a stay not only isn't irreparable; it's nonexistent.

Meanwhile, Justice Alito's claim that he takes the problem that States would face in trying to comply with the Post Office's rule "very seriously" is about as credible as Senator Susan Collins saying she's "very concerned" about . . . well, just about anything she either votes for anyway or votes against only so long as there are enough Republican votes for the measure to pass.

Justice Alito gives two reasons to discount the impact of the Post Office rule on the plaintiff States. One is that "[t]welve States supported the rule [in the lower courts] and asserted that compliance at this time is practicable." Yet the fact that it was only twelve States actually cuts against Justice Alito's view.

It should surprise no one to learn that the twelve states that supported the Post Office rules are all led by Republicans. They are: Alabama, Florida, Indiana, Kansas, Louisiana, Missouri, Montana, Nebraska, Oklahoma, South Carolina, South Dakota, and Texas. What's notable is not that twelve Republican-led states would support a Trump-led initiative to disenfranchise Democratic voters but that so many didn't. There are currently 26 states with Republican Governors and 27 with Republican Attorneys General. That means that a majority of Republican-led States were unwilling to assert that they could readily comply with the Post Office's rules. And of course, no Democratic-led states were among the twelve.

Justice Alito's second reason for discounting the harm to the States is that he blames them for it. By filing lawsuits in April to block President Trump's executive order telling the Post Office to adopt restrictive requirements for mail-in voting, Justice Alito says, the plaintiffs delayed the Post Office's adoption of a final rule until such a time that implementing it would be difficult.

Readers familiar with Justice Alito's broader oeuvre will recognize this victim-blaming move as a more-than-a-decade-old rerun. In Glossip v. Gross in 2015, the Supreme Court, in an opinion by Justice Alito, rejected an Eighth Amendment challenge to the use of the drug midazolam in executions, despite substantial evidence (detailed from the record in Justice Sotomayor's dissent) that it causes a torturous death. Justice Alito's opinion included the implicit argument that any avoidable suffering caused by midazolam was the fault of "anti-death-penalty advocates" who had "pressured pharmaceutical companies to refuse to supply the drugs [previously] used to carry out death sentences." He had made the point even more directly during the oral argument in Glossip when he pointedly indicated that he was not inclined to show sympathy for Glossip and his fellow death-row plaintiffs when capital punishment abolitionists had waged "a guerilla war against the death penalty which consists of efforts to make it impossible for the States to obtain drugs that could be used to carry out capital punishment with little, if any, pain."

For the sake of argument, let's assume that Justice Alito is right in both settings: absent the campaign of death penalty opponents and the litigation by voting rights advocates, states wouldn't have used midazolam and the Post Office would have promulgated its rules earlier. Even so, how is it remotely fair to punish people who were not themselves participants in the respective campaign and litigation by subjecting them to a torturous death (in Glossip) or disenfranchisement (in the Post Office case)?

The short answer is that for Justice Alito (and Justice Thomas), it is all guerrilla warfare, in which he makes no distinction between combatants and civilians, between the activists he regards as the enemy and the innocents whose interests they represent.

-- Michael C. Dorf

Once More Into the Breach: The Incoherence of the Personal Injury Requirement for Standing

2026-09-14T07:00:00.000-04:00

The Supreme Court’s fabricated standing doctrines are not grounded in text, history, tradition, or common sense. Standing case law is so incoherent that finding supporters of it is virtually impossible, and that includes folks on the left, right, and in the middle of the political spectrum.

The cause of much of the incoherence of standing doctrine is the requirement that plaintiffs suffer a personal injury (sometimes referred to as "injury-in-fact) separate from the legal violation they allege in their complaint. The Court grounds this requirement in the language in Article III that the federal “judicial power” only extends to “cases” or “controversies.” Pursuant to this key to unlock federal jurisdiction, it is not enough that a plaintiff alleges a violation of a federal statute or the Constitution. Instead, she must show damage to life, liberty, or property or on rare occasions, some other less tangible interest.

For example, taxpayers do not have standing to challenge spending decisions by the federal government that allegedly use taxpayer dollars illegally unless the plaintiffs show an injury separate from the illegal spending. There is a narrow and incomprehensible exception to that rule for people challenging a federal spending law they claim violates the first amendment's establishment clause. But those plaintiffs do not suffer any injury different from the many other plaintiffs who lack standing to bring suits against federal spending but whose claims are tethered to other constitutional limitations.

I previously wrote on this blog about how that exception to the general rule was invented by a frustrated Supreme Court clerk who was given no choice but to draft an opinion, Flast v Cohen, that makes no sense. Decades after that case was decided, however, and after its reasoning (not the result) had been criticized by virtually everybody, the Court in Hein v. Freedom from Religion Foundation cut back on the scope of Flast but affirmed its irrational "nexus test," leading Justice Scalia to write the following in his concurrence:

Today’s opinion is, in one significant respect, entirely consistent with our previous cases addressing taxpayer standing to raise Establishment Clause challenges to government expenditures. Unfortunately, the consistency lies in the creation of utterly meaningless distinctions which separate the case at hand from the precedents that have come out differently, but which cannot possibly be (in any sane world) the reason it comes out differently.

Minimalism is an admirable judicial trait, but not when it comes at the cost of meaningless and disingenuous distinctions that hold the sure promise of engendering further meaningless and disingenuous distinctions in the future. The rule of law is ill served by forcing lawyers and judges to make arguments that deaden the soul of the law, which is logic and reason.

Justice Scalia was right about the incoherence of the Flast exception, which somehow is still good law, but wrong about his proposed solution--use the injury requirement to bar all suits where the plaintiff cannot identify an injury separate from the legal duty allegedly violated.

Scholars observed decades ago that whether a person suffers some injury separate from the violation of law is the wrong question to ask. The violation of the law is the injury. If that injury causes no damage, then deny or adjust the remedy. If the Court feels it should not wade into a particular sticky wicket, use the political question doctrine to dismiss the case. But when two parties disagree over something real, not hypothetical, and the case is ripe and not moot, there is no reason to deny jurisdiction because the plaintiff failed to articulate an injury separate from a violation of law. Article III requires a case or controversy but says nothing about personal injury.

Almost forty years ago, then Professor William Fletcher (now a Senior Ninth Circuit Judge) was so upset about the personal injury requirement (among other aspects of standing) that he started off a seminal law review article as follows: "The structure of standing law in the federal courts has long been criticized as incoherent. It has been described as 'permeated with sophistry,' as 'word game played by secret rules,' and more recently as a largely meaningless litany recited before "the Court . . . chooses up sides and decides the case."

As to the personal injury requirement, he argued that any plaintiff who claims to be injured, and who is telling the truth, is in fact injured. The real question is whether the law provides a cause of action for that injury. I'll use a modern version of a hypothetical he used in the article to make my point. If my neighbor's dog barks all night long with the result that I cannot sleep, have to seek medicine, and perform less well at my job, I could bring a tort action in court if state law allows me to do so, and no one would doubt my injuries are sufficient for standing.

But if I can't sleep at night because I am so upset by President Trump's lies and policies, and I suffer exactly the same injuries, and my doctor and employer testify under oath how my lack of sleep has caused my injuries, I cannot sue because no statute or other source of law gives me the right to sue. That is not a standing problem but a merits problem. I am still "injured-in-fact," but I have no legal redress as a merits, not jurisdictional, matter.

All of which brings us to a new article by my colleagues Clark Cunningham and Ute Romer-Barron that is the latest installment in the battle against the personal injury requirement but with two fascinating twists. The first is that the article emphasizes that a prominent and conservative judge long associated with the Federalist Society, Kevin Newsom of the Eleventh Circuit (a short lister for the Supreme Court), wrote an opinion a few years ago castigating the personal injury requirement and almost begging the Supreme Court to eliminate it. The second is that the authors use corpus linguistics (of which I am admittedly not a fan) to show that the word “case” as understood at the time of ratification, and as used in Article III, did not include the requirement of an injury separate from the violation of a legal duty.

As readers of this blog know, I am no originalist. For those who are, and who are not hypocrites like our current self-identified originalists on the Court, the authors show clearly what famed originalist Raoul Berger and the second Justice Harlan agreed with over fifty years ago: based on text and history, there should not be a personal injury requirement as part of the standing analysis. Berger reached this conclusion in a famous law review article, and Harlan did the same in his well-reasoned dissent in Flast itself. Of course, neither had access to corpus linguistics, and this new article supports their conclusions using that tool.

Judge Newsom’s comments about standing are discussed at length in the article but they cannot be repeated enough. He made them in a concurring opinion in Sierra v. City of Hallandale Beach Florida. I hope the following quote inspires those who care about standing to read both Newsom’s opinion and the article by Professors Cunningham and Romer-Barron:

There is a far more natural and straightforward reading of the word “Case” than one that turns on the existence of an “injury in fact”: An Article III “Case” exists so long as—and whenever—a plaintiff has a cause of action, whether arising from the common law, emanating from the Constitution, or conferred by statute. And a plaintiff has a cause of action, as I use the term here, whenever he can show (1) that his legal rights have been violated and (2) that the law authorizes him to seek judicial relief....

[A] legal injury can exist without an injury “in fact,” (2) an injury “in fact” doesn't necessarily entail a legal injury, and thus (3) injury “in fact” was neither a necessary nor a sufficient condition for an Article III “Case.” By contrast, the same concepts demonstrate that the existence of a legal injury, an injury at law, was both a necessary and a sufficient condition.

Judge Newsom is right, as were Raoul Berger, Justice Harlan, Judge Fletcher, and scores of academics writing over the last fifty years. Despite all that criticism, however, Professors Cunningham and Romer-Baron have made an important contribution to the flood of scholarly and judicial angst over the Court's creation of a personal injury requirement for standing. I strongly recommend their new article.

-- Eric Segall

On the 25th Anniversary of 9/11: Thoughts on Collective PTSD

2026-09-11T07:00:00.000-04:00

Today is the 25th anniversary of the terrorist attacks of 9/11. On the occasion of the tenth anniversary, I published on this blog two personal remembrances, one by Professor Buchanan on 9/9/2011 and another that I wrote on 9/11/2011. I revisited those recollections and added some more analysis in 2015 in response to a major terrorist attack in France. I won't reproduce any of those essays in full today, but I do want to draw on my 2011 and 2015 pieces to make a few observations about the circumstances in which Americans currently find ourselves as a nation.

To draw the linkages I wish to draw, I do need to quote briefly from my 2011 and 2015 essays. I'll take them in reverse order. My 2015 essay warned that following through on the bellicose language from then-President Hollande of France risked repeating the mistakes the U.S. made following 9/11. I wrote:

I am not advocating any particular policy path for France or the U.S. I am only saying that as we quite appropriately share in the grief of our friends in France, we and they should keep in mind that, while the use of overwhelming military force is sometimes a sensible policy, the fact that it is the first thing we think to do in our grief and anger does not mean it is in anyone's ultimate best interest.

Fortunately, France did not find itself in a forever war against ISIS. However, and more broadly, it seems that no one learned much of anything from the two decades of U.S. war in Afghanistan following 9/11. Shortly after October 7th, 2023, both Professor Buchanan (here) and I (here) compared what was then the emerging Israeli military response to the Hamas terrorist attack on Israeli civilians to the American response to 9/11. Unfortunately, we were right about what was to come.

By "what was to come," I have in mind Israel's terribly destructive war in Gaza, not the current terribly destructive war between, on one side, Israel, the United States, and reluctantly allied countries (Jordan, Saudi Arabia, the Gulf states, etc.) and, on the other, Iran and its proxies. The mistake the U.S. made after 9/11, that Israel made after October 7th, and that I worried France would make after the November 13, 2015 attacks was to commit to a military response out of something like rage without coldly calculating whether doing so would be advantageous, much less whether it could be conducted without causing unwarranted harm to innocents.

That was not the mistake made by Trump and those of his advisers who favored the current war (chiefly Pete Hegseth). They made many and less excusable mistakes in launching the current war. Indeed, it is not accurate to refer to what Trump and the administration have done as mistakes, a term that implies inadvertence. Their decision to take the country to war with Iran was a deliberate and highly culpable act.

What explains that act? As a military matter, the answer is hubris. Rendered overconfident by the relative ease with which U.S. forces had extracted Nicolas Maduro from Venezuela, Trump ignored those who warned him that Iran would be a much more difficult adversary.

But if hubris explains why Trump thought a decapitation strike against Iran would lead to a quick victory and regime change, it does not explain the decision to launch it at a time when the U.S. and Iran appeared to be making progress towards a negotiated resolution to the Iranian nuclear program. To explain that decision, one must resort to Trump's flaws as a human being, including: his unwillingness to accept any kind of nuclear deal that looked too much like the JCPOA President Obama negotiated and he abandoned; his utter disregard for international and domestic law; and his childish fascination with blowing things and people up.

So no, we are not repeating the post-9/11 mistakes. We--that is to say Trump and the Republicans in Congress who refuse to rein him in--are finding ways to do even worse.

What about the home front? My ten-year-anniversary 9/11 essay mostly focused on my own personal experience. I explained that my father's office had been on the 82nd floor of World Trade Center 2 but that thankfully he had retired before 2001. I also described my own eery feeling as the smoldering-but-not-yet-collapsed twin towers came into view from the Amtrak train I was riding on a trip home the morning of 9/11. I eventually pivoted to broader lessons and concluded as follows:

We--everyone born before, say, 1996 or so--are suffering from a kind of collective PTSD. It doesn't entirely impair our ability to function, and often we're completely unaware of it, but it can be triggered easily. Over time, of course, the trauma will fade. Perhaps some day, Americans will commemorate 9/11 the way we commemorate other solemn events, like Memorial Day--with a sale on cars, mattresses, and consumer electronics. That's how we'll know we've finally gotten over 9/11. I don't expect to see a 9/11 mattress sale in my lifetime. I hope to, but I don't expect to.

I'm tempted to say that we have almost entered mattress sale territory because J.D. Vance referred last week to the fact that we were "about to celebrate" the 25th anniversary of 9/11, but it's plain that Vance simply misspoke, as he immediately corrected himself by substituting "commemorate" for "celebrate." Vance has numerous flaws, but the fact that he occasionally (and no more than most others in public life) says the wrong word is not one of them.

That we haven't entered mattress sale territory is not to say that nothing has changed about how the country views 9/11. Joe Biden's best line as a presidential candidate in 2008 was that the only parts of a sentence coming out of Rudy Giuliani's mouth are "a noun, a verb, and 9/11." Although Biden was trying to make the point that Giuliani (who, at the time was a plausible candidate for the Republican nomination that eventually went to John McCain) was unqualified, the Biden attack line also revealed that already by October 2007 (when the debate occurred), someone who still was focused intently on 9/11 was an obsessive. In the nearly 19 years since that debate, 9/11 has receded much further in the American consciousness, to be remembered mostly on anniversaries like today.

That fading is a mixed blessing. Insofar as we've forgotten the lessons of the post-9/11 foreign policy disasters, we're worse off.

On the other hand, the fading of 9/11 has meant the fading of the associated PTSD. No one can live a full life in a state of constant high alert--which is what the domestic aftermath of 9/11 felt like, especially so because the Bush administration introduced an absurd set of color-coded threat levels. The level hovered for the better part of a decade between yellow (significant) and orange (high), even though the administration never released any guidelines about what individuals were supposed to do differently based on the threat level. The message seemed to be simply that Americans should adjust their state of anxiety between significant and high.

I will not, however, end on an optimistic note about the reduction of our collective anxiety or PTSD because we are daily--indeed sometimes more than hourly--made anxious and re-traumatized by the malignant narcissist in chief.

-- Michael C. Dorf

Dolly Parton, Gloria Steinem, and the Human Sides of Greatness

2026-09-10T17:09:36.650-04:00

Dolly Parton died two weeks ago. Gloria Steinem's passing came a week later. Both were admirable, powerful, and unique women who made indelible marks on important civil rights issues. And if my words seem to massively understate the importance of their lives and work, I can only plead guilty. Words do sometimes fail us all.

Rather than writing general remembrances or half-informed biographies of either of these women, I will use this column today to comment on some notable aspects of their profound social impacts. And although I am more than a bit uncomfortable doing so, I should note up front that my discussion of Steinem's legacy will include a genuine disagreement with a person with whom I almost never disagreed.

First, Dolly Parton. As many have commented, she somehow lived through one of the most divisive times in American history, when no one is universally liked (or even tolerated), yet everyone loved her. Genuinely. She might be the last person who could make everyone happy. When the "King's Guard plays '9 to 5' outside Buckingham Palace in moving tribute to Dolly Parton," something special is afoot.

What is more surprising is that she managed to do all of that seemingly with no effort, without guile or calculation. That is, she never tried the musical equivalent of Michael Jordan's infamous "Republicans buy sneakers, too" dodge (a comment that has its own Wikipedia page, calling it "a stance often attributed to his desire to maintain broad, bipartisan commercial appeal").

Not Parton. (As relatable and even lovable as she was, I refuse to follow the crowd and call her Dolly, because doing so strikes me as presumptuous.) She was a feminist, a beloved LGBTQ+ ally, and openly progressive in her views. Jennifer Rubin ended her piece on Labor Day by honoring the "Nashville Association of Musicians (AFM Local 257) and SAG-AFTRA member, philanthropic giant, and musical genius, Dolly Parton." She was not an in-your-face celebrity spouting off on political issues, choosing instead to walk the walk.

And she did so even when it was uncomfortable. For example, more than ten years ago, Parton publicly denounced North Carolina's infamous "bathroom bill," long before trans activism was common (and even before trans activism was called trans activism). Shortly after her death, CNN ran a piece titled "What Dolly Parton's allyship meant for the queer community," and the excellent YouTuber Matt Baume offered a touching "Dolly's Quilt of Many Colors," with this description:

How did Dolly Parton become a gay icon? And what did she do for the queer community? Her style inspired countless drag queens, and her big open heart brought people together across religious and political divides. Her outspoken support for marriage equality, trans rights, and people living with HIV would have been enough to cement her place in history as an ally. But through her company Sandollar, she and her gay best friend Sandy Gallin produced a documentary called Common Threads: Tales from the Quilt that transformed America's relationship with AIDS.

In other words, by the time that terrible bathroom bill came along, Parton was decades deep into being an ally.

And when it comes to racial matters, channels that I have never before visited posted pieces with titles like "WHY BLACK PEOPLE LOVE DOLLY PARTON - RIP" and "Why Black Folks Invited Dolly Parton to the Cookout," the latter of which came with this description: "Why do so many Black people genuinely love Dolly Parton? It is about more than 'Jolene,' rhinestones, or her unforgettable personality. Dolly Parton earned the affection of many Black Americans through a pattern of respect, generosity, accountability, and public support." She treated the Black Lives Matter "question" as if it was simply bizarre even to ask it, and her "well obviously" answer was more than too many people were able to cough up (including many White politicians, who tried to go with "Well, all lives matter," which was deliberately obtuse).

So when I say that it is amazing that there were no prominent voices grumbling in the background after Dolly Parton's death -- even Donald Trump wrote something positive about her, whereas he had trashed Rob Reiner when he died -- I mean to highlight that she gave the political right every opportunity in the world to vilify her.

Which is to say that even though culture warriors are still unable to define "woke" as anything other than "liberal stuff that I can't make a coherent argument against but want to dismiss anyway," they do have an ad hoc checklist, and Parton ticked every box on it. But they stayed silent and at least claimed to love her anyway. If that is not evidence of a superhuman power, what would be?

Speaking of culture wars, I do feel the need to comment on something that appeared in a very positive review of Parton's life by one of the op-ed columnists at The New York Times, Tressie McMillan Cottom. Parton was, of course, a child of Appalachia, which Cottom described as "a place that is just as mythologized, mocked and misunderstood as Dolly was. It's a place where people are rarely allowed to speak for themselves. Instead, they are interpolated through coastal biases about white trash and red states."

Well, this is where I can speak as a reasonably informed observer. How? Because I am not "coastal," having grown up not just in the hyper-uncool Midwest but in Toledo, Ohio, which is the butt of almost as many jokes as New Jersey and West Virginia (or, for the Canadians out there, Newfoundland). Toledo is, in other words, nobody's idea of a snobby place. Even so, Parton was just as mocked in her early years in places like Toledo, Cleveland, and Chicago, as she was anywhere else.

Yes, there were country music fans in the upper Midwest, but there are country music fans in California and on Long Island, too. Most of the country, not only the coasts, simply failed to get Parton's self-effacing joke. The guys on "Hee Haw" who wore rhinestones on their leisure suits were laughingstocks, and at least until Parton's music started to cross over with some mainstream hits, she was easy to lump in with the rest of them. In other words, it was not the coasts condescending to Real America (as Republicans now like to frame it) but rather the non-South laughing at the gaudy excesses of the most Southern genre out there. Cottom is certainly no friend of the American right, so I was especially disappointed to see her casually reinforce that false line of attack.

"What I felt like inside was a plump brunette from Toledo, too tall and much too pudding faced." So Gloria Steinem wrote in one of her books, as recounted in an obituary in The Times. Yes, this is called a segue. I could have gone with a 1987 piece in Ms., "Dolly Parton’s Unique Feminist Power, as Told by Gloria Steinem," but hometown bias has its place. After all, Steinem's formative interest in journalism was sparked by her mother's career writing for the local newspaper, The Blade. (Side note: Toledo's namesake city in Spain is famous for forging swords from Toledo Steel. As much as I would like the newspaper's name to have a gay rights origin, it is not so.)

Steinem was one of the all-time giants of feminism, and when I was coming of age in the 1970's, her impact on public discussion of civil rights for women was incalculable. Indeed, I had barely become a teenager when I started to hear discussions about feminism and thought, "Well, of course I'm a feminist." In the years since then, I graduated from one of the "Seven Sisters Colleges," taught at three more of them, had a cross-appointment on a Women's Studies faculty at a state university, joined the International Association for Feminist Economics, and made the transition from economics to law via a network of brilliant feminist legal theorists.

None of that, however, makes me an expert on feminism -- or even necessarily a feminist. I stipulate the latter because I became aware early on that some women who are feminists reject the notion that men can be feminists, and although I continue to disagree, I understand their argument. More generally regarding my minimal-at-best expertise, I would need a refresher course to be able to describe the various waves of feminism at all competently. But I do know that Steinem was an architect of Second-Wave feminism, which transformed women's lives around the world in ways that are difficult even to comprehend today. Should women be able to have credit cards in their own names, without their husbands' permission? If you answer "yes," thank Gloria Steinem and the movement that she helped to lead. And that is only one example of her impact.

All of which brings me to the uncomfortable part of today's essay. After hearing last week that Steinem had died, I of course felt sadness and loss. At that point, however, a thought occurred to me: Was she one of the feminists who took Bill Clinton's side in the Lewinsky scandal? I honestly could not remember. I certainly knew that Steinem was not the source of the worst vileness, such as this comment from a then-prominent feminist legal scholar: "Lewinsky at least appears to have flirted her way to a job at Revlon and, when that disappeared, a $2 million modeling offer and the status of the most-sought after woman in the world. Not bad, some might say, for someone who can’t type." Even so, I had a sense that Steinem had been a Clinton defender.

The same source from which I drew the quotation above, a 2007 Vanity Fair column by Marjorie Williams, makes it very clear that feminists were divided about the Clinton-Lewinsky question, and Williams also makes it clear that she disagreed with Clinton's defenders, including Steinem, whom Williams quotes:

"We’re not against sex; we’re against the use of sex to cajole, humiliate, coerce. But, according to what Lewinsky says, this was not the case with her…. We need to trust the women here. If we say a 21-to-24-year-old has no sexual will, we’re going against the whole struggle for self-determination and taking responsibility for our own lives." ...

"We would not be doing our job if we didn’t take into account that this president and his policies are crucial to the lives and welfare of the majority of women in this country,” Gloria Steinem assures me. “That’s not bending over backwards: that’s being sensible. Having said that, if Clinton had raped women, beaten up Hillary—real private sins would not be forgiven, no matter what the value of the public behavior.

Williams ends with this brutal assessment: "There it is, fellas, in case you’re still confused: it seems we just lowered the bar."

But the key question here is whether Steinem continued to hold and defend those views as time went on. A 2017 piece in The Guardian by Molly Redden includes this (referring to an infamous 1998 NYT essay by Steinem):

Steinem’s op-ed has been held up as a prime example of how Democrats and their allies reflexively rallied to Clinton’s defense, an argument made most forcefully by the writer Caitlin Flanagan in the Atlantic.
“It slut-shamed, victim-blamed and age-shamed; it urged compassion for and gratitude to the man the women accused,” Flanagan wrote. “The notorious 1998 New York Times op-ed by Gloria Steinem must surely stand as one of the most regretted public actions of her life.”
But if those regrets exist, they are not Steinem’s.
“I’m glad I wrote it at the time,” she said. “Because the danger then was we were about to lose sexual harassment law because it was being applied to extramarital sex, free will, extramarital sex, as with Monica Lewinsky.”

Steinem added this: "The problem at the time was, the sexual harassment law was in danger. If Clinton had resigned, that would have endangered the law.”

Again, this is uncomfortable. I am, however, skeptical of the claim that "sexual harassment law was in danger." How could it have been? Al Gore would have become the President. Was the worry that he would have responded to a blatant example of sexual harassment by agreeing to weaken sexual harassment law? Maybe Steinem knew something that the rest of us do not know, but if so, she did not share it. And it is simply puzzling how applying it to extramarital sex would somehow "lose sexual harassment law."

Indeed, when I say "a blatant example of sexual harassment," this brings us to the more fundamental reason that I continue to disagree with the pro-Clinton feminists' argument. At the time, I was glad that the Clinton impeachment trial's result was a political loss for Republicans. Even so, there was no question that he had done something very wrong, and seeing it as being wrong did not in any way undermine the agency of women or imply a failure to "trust" them. Put simply, the President of the United States made a sexual advance on a very young subordinate. Even though she said that she agreed, that is an abuse of power, and if both parties to the sexual encounter had been men (or women), the abuse of power would have been the same.

This is the same reason that it was a very big advance when universities finally instituted policies against professor-student sex, even when it appears to be consensual. And if it seems that professors have too much power in that kind of situation -- and they do (and have been willing to abuse it for far too long) -- where should we stand on the power balance between the most powerful man in the world and a young adult in his office? Yes, I view that as a rhetorical question.

Again, I claim no special knowledge or status as an expert on these issues, certainly not in comparison to an icon like Gloria Steinem. Even so, it seems important to show my respect for her by making it clear that I view her as human and thus fallible. I do disagree with her -- emphatically -- about this matter.

Two women -- great in different ways, but also in similar ways -- made the world a better place. They were not perfect (although Dolly Parton came close), but we are worse for no longer having their voices to guide us.

- Neil H. Buchanan

The NBA Went Too Easy on Steve Ballmer and Too Hard on the Clippers

2026-09-09T07:00:00.000-04:00

In order to promote competition, the National Basketball Association (NBA) has a salary cap. Its rules (which are adopted as part of collective bargaining between the team owners and the players' union), are very complicated but the key point for purposes of today's discussion is that there are caps on both individual salaries and total team salaries. There are also anti-circumvention rules. As basketball fans undoubtedly know, the Los Angeles Clippers were recently given a very severe penalty for violating those anti-circumvention rules by using third parties to funnel millions of dollars beyond the official salary to their star player Kawhi Leonard.

In saying the penalty is severe, I am not referring to the financial penalty. Leonard was fined $700,000, and Clippers owner Steve Ballmer was fined $30 million. But Leonard's salary for last season was about $50 million, so his fine amounted to less than 1.5% of one year's salary. Ballmer, meanwhile, is a co-founder of Microsoft with a net worth of over $150 billion. To get a sense of what his fine means in percentage terms, that's like a "mere" millionaire having to pay a fine of about $300. He'd rather not pay it, but he's not going to feel it.

Nonetheless, I say the penalty for the Clippers was severe because in addition to the fines (and a one-year suspension for Ballmer), the team had to sacrifice five consecutive first-round draft picks. The Clippers have had some good seasons over the years. They were entertaining and competitive (though they never made it past the second round of the playoffs) during the Lob City era of Chris Paul, Blake Griffin, and DeAndre Jordan. They made it to the Western Conference Finals in 2021 but injuries and other setbacks meant that the Clippers with Leonard and Paul George never fulfilled their full potential. And in between there have been some very bad seasons. Rebuilding without any first-round draft picks will be very difficult. The pain will be felt chiefly by Clippers fans and not at all by Leonard, who has returned to the Toronto Raptors (a team he led to an NBA championship in 2019).

Hovering over all of this is the question why? Why does a man earning $50 million want his team to cheat to pay him even more?

When people ask why billionaires want more money, one answer often floated is that the super-rich treat wealth as a kind of competition independent of any direct utility of the money. Elon Musk feels like he is winning as against Jeff Bezos because Musk has more money than Bezos, even though each of them has way more money than anyone could ever possibly spend.

That explanation has a close analogue in sports. The ability to get a "max contract" in the NBA is vindication that one is a super-elite player, a way of keeping score. But the whole point of under-the-table payments is that they're, well, under the table, and thus not visible for scorekeeping. We still have a puzzle.

The puzzle seems especially acute when one considers that the New York Knicks just won a championship in no small part because their star player, Jalen Brunson, took $113 million less than he could have received so that more money would be available under the salary cap to surround him with other talented players. It worked.

I suppose one might say that Brunson's decision made sense because he was hungry for professional fulfillment, which arrived when he led the Knicks to a championship and was named NBA Finals MVP. Leonard, by contrast, has already been the Finals MVP twice--once with the San Antonio Spurs and once with the Raptors. So maybe he's professionally fulfilled and just wants more money.

But that's hardly a sufficient explanation. LeBron James has won four NBA championships, four Finals MVPs, and four regular season MVPs; he is widely recognized as either the greatest or one of the two greatest NBA players of all time; and yet James recently signed a contract with the Philadelphia Seventy-Sixers for $8 million for the upcoming season, which is an order of magnitude less than what he could have earned; he did so for the same reason Brunson left money on the table--to help his team improve its personnel and thus boost its odds of a championship.

Maybe Leonard is either a much greedier human being than Brunson and James? That's theoretically possible, but Leonard has always come across as soft-spoken and humble--much less flashy in his personal style than many of his peers. The notion that Kawhi Leonard is unusually greedy or unusually uninterested in helping whatever team he is on win is far-fetched.

So perhaps responsibility for the salary cap circumvention does not rest with Leonard. A story last week in The Athletic (behind a paywall) lays the blame for the demand for under-the-table payments to circumvent the salary cap on Leonard's business manager, who also happens to be his uncle, Dennis Robertson. Greed by Robertson is a highly plausible explanation for the scandal. The NBA caps agents' percentage of their clients' salary at 4 percent. But Robertson is not a registered agent and did not act as an agent on Leonard's behalf. Not sharing in Leonard's salary, for him the under-the-table payments were in fact a very big payday.

If a large portion of the anti-circumvention-rules-violating payments went to Robertson, we don't have much of a mystery. And in fact, the NBA found that Robertson acted without Leonard's knowledge. Moreover, when Leonard was shown a preliminary version of the league's findings, he fired his uncle as business manager, which cannot have been easy, given that Robertson was a father figure to Leonard, whose own father was murdered when Leonard was sixteen. The fact that Leonard was not responsible for Robertson's actions explains why Leonard received (for him) a very light penalty. Indeed, one might think that if Leonard really was an innocent bystander in the scheme, then any fine for Leonard was uncalled for.

Was Leonard really unaware? The one observer who seems to know best is Pablo Torre, the investigative journalist who discovered the Clippers' scheme to circumvent the salary cap in the first place. And he thinks the evidence suggests that Leonard very much did know what his uncle was up to. If so, that revives our mystery.

Maybe Leonard knew what Robertson was up to but didn't object because he wanted his uncle to get a big payday. That's possible, I suppose, but Leonard is sufficiently wealthy that he could have just paid Robertson more as his manager or even as his uncle. We routinely read stories of athletes purchasing homes, cars, and other expensive items for relatives to whom they feel warmth and gratitude. Accordingly, I remain puzzled by Leonard's motivation and will simply leave it there.

What about the bigger picture? If one believes that Leonard really was innocent in the plot, then his story jibes somewhat with other stories of athletes and others being taken advantage of by people they trust with their finances. Kareem Abdul-Jabbar's manager mismanaged and stole millions from him. Bernie Madoff did the same to his clients. Against that backdrop, Robertson is less of a villain. He cheated the league but not his client/nephew.

But what about Ballmer and the Clippers? Why did they accede to Robertson's demands for deals that circumvented the salary cap? Why didn't someone for the Clippers just say no, we can't do this? That question seems easy enough to answer: Team owners, managers, and players want to win. To do so, they sometimes cheat--whether by using forbidden performance-enhancing drugs, stealing signs, or circumventing the salary cap.

Whatever the explanation for everyone's conduct, the penalties seem mismatched: too harsh on the Clippers and their fans but insufficiently harsh on Balmer, who can be back at games and running the team in just a year and who, as noted above, will not feel any financial pain from the loss of $30 million. (Robertson received a five-year ban, but I doubt he will be able to find other clients even after the ban ends.)

Pete Rose was rightly given a lifetime ban from baseball for gambling on games he managed, even though he only ever bet on his own team. Steve Ballmer deserves the same penalty for trying to circumvent the salary cap, even if he did so only to help his own team. After all, Rose's gambling was not calculated to cheat other teams (which is not in any way to excuse it). Ballmer's circumvention was in fact designed to give the Clippers an unfair advantage in competition for Leonard's services.

-- Michael C. Dorf

Politics Is Not All (or Even Mostly) About Economics: US Democrats Need to Learn the Right Lesson from the Frightening Election in Germany

2026-09-08T16:36:57.091-04:00

Given my background and interests, I typically do not find myself writing columns about politics in Germany, and certainly not about German state elections. As of this week, however, everyone must start to pay attention, because the neo-Nazi party that has been growing in popularity there (known as the AfD) won a key election in a state in the former East Germany. The party did fall short of a majority, but the outcome is shaking European politics to its core.

I will have much to say below about lessons from the German election for all of us in the United States, but I should first provide a bit of essential context.

To begin, why is the outcome worrying leaders across Europe rather than in Germany alone? After all, despite the existence of the European Union, countries on that continent maintain their own unique and independent political systems. Unfortunately, however, what the French have called the cordon sanitaire -- a commitment by non-extremist parties to exclude extremist parties from power-sharing coalitions -- is becoming more and more difficult to maintain, to say nothing of the possibility that an extremist party could win an outright majority somewhere. (Italy's right-wing government is a coalition.)

Moreover, the AfD's rise has hardly been a homegrown affair. As The Guardian reported, the clodpoll who on any given day might or might not be a trillionaire "congratulated the far-right party on its election victory with a 'Well done!' on his social media platform X, prompting Ulrich Siegmund, the AfD’s lead candidate in Saxony-Anhalt, to thank the nativist US tech billionaire for his support."

That same dullard, by the way, was a central player in the outbreak of race riots in Northern Ireland earlier this summer. A news article in Le Monde quoted Imran Ahmed, the founder and CEO of the Center for Countering Digital Hate (CCDH), saying that the troll in question "used the Belfast tragedy to amplify anti-migrant narratives to millions of users, prompting endless calls for violence. While communities dealt with the consequences of brutality and disorder, no individual played a bigger role in spreading this content on X."

And of course, the rise of the far right in the United State has been largely fed by the same anti-immigrant disinformation and incitement that led to the election result in Germany this past weekend.

There is much to say about all of this, but I want to focus on something that Paul Krugman included in a recent column, "Neo-Nazis and the Impotence of Trumponomics," specifically his take on how the German political situation should inform the way we think about political priorities in the US. Krugman drew a telling lesson about the "working class voters left behind" explanation of Donald Trump's rise, which is unfortunately a story that American political types -- including many, many, many people in the center and left of US politics -- have taken as gospel.

Krugman's Substack pieces are relatively brief and always informative, and this one is definitely worth a full read, for those who have the time to do so. In particular, I was struck -- in a very positive way -- by this statement (and the analysis supporting it): "I should mention one more lesson from the AfD’s victory, one that has me reconsidering some of my own beliefs." Krugman does have a habit of reminding people that he sometimes changes his views, but his self-regard should not obscure the fact that an open mind is a virtue.

What is the lesson that he drew? That explaining the rising support of neo-fascist movements by pointing to the working-class's desperation in "left-behind regions" is nonsense. Why? Krugman points out that the usual exculpatory story about those who embrace the MAGA movement is tied to trade deficits and the loss of "manly jobs" in manufacturing.

He then says that, if that explanation were true, Germany would be a progressive paradise with no danger from the extremist right, because Germany runs trade surpluses that are larger than US trade deficits. Plus, macho jobs are much more plentiful there:

Even Germany has gradually become “deindustrialized,” but even now it is more of an industrial nation, as measured by where the jobs are, than the United States has been for at least 35 years. Has this insulated Germany from the bitterness and political extremism that many U.S. observers attribute to deindustrialization? Apparently not.

Krugman concludes: "What, then, is the moral of this analysis? Mostly it’s negative: Crude economic factors don’t explain the fascist shift in Germany. And Trumponomics, even if it worked (which it doesn’t) wouldn’t end the resentment feeding our own authoritarian movement."

This should change the way Americans who fear the rise of fascism think about US politics. Again, it is to his great credit that Krugman looked at the evidence in an innovative way and then very publicly reconsidered his beliefs. I was especially happy to see this, because I have in the past chided Krugman for buying into the claim that the US election in 2024 was determined by Americans' economic desperation.

In November and December of last year, I pointed out that the US left's conventional wisdom about that election -- an economic explanation that Krugman fully embraced -- is belied by the inconvenient fact that everyone felt the pain of post-pandemic affordability issues while only one demographic group swung toward Trump. In my November piece, I wrote:

If it were about feeling pinched in the pocketbook, why would it be only Latinos who shifted to Trump while no one else did? For that matter, why would Latinas not have "believ[ed] that he would deliver prosperity" as strongly as their male counterparts supposedly did? Is there some unknown social science research showing that Latino men are super-responsive to economic stress, that Latinas are kinda-sorta responsive to economic stress, and no one else cares about economic stress enough to change their votes?

Again, Krugman's analysis of the German election avoids the mistake that he (and so many others) have been making about the last US presidential election. He now focuses on a statistical distinction -- a massive one in this instance -- and says, "If Theory A were valid, we would see two very different outcomes in Countries G and U, but we don't." That is huge.

What are the lessons for US non-Trumpists? Most obviously, they should stop acting as though there is a good story that people fell for Trump because they felt bad about their economic lives. And almost as obviously, they should stop following the advice of people like Bernie Sanders, who all but fetishizes the narrative that American workers will abandon Trump and the Republicans more generally if Democrats and independents would only focus on economic issues.

To be clear, I continue to have a great deal of admiration for Sanders and the political movement that he has been an essential part of creating. Even so, I have for years argued that it is close to political malpractice to think of working Americans as powerless to stop themselves from falling for Trump's false promises. It is also insulting and condescending to those very voters. This is the same error that progressive Democrats made by elevating now-forgotten Graham Platner as the next great voice of the forgotten working man. (And I do mean man, because Democrats seem almost pathologically committed to chasing votes in the toxic manosphere.)

I should also state explicitly that none of what I have said here means that Democrats should actively avoid talking about economic issues. Obviously, pushing issues that people care about is all good, but it is nonetheless crucial not to confuse making people's lives better economically with trying to tempt unreachable people with the return of an economy that is never coming back. How can a candidate do that?

I am happy to have been wrong when I wrote in November 2024 that "[n]o one ... should ever expect that Ohio or Montana will elect a Democrat again, not when both states' very effective and popular incumbents could not stave off rather decisive defeats." The incumbent who lost that year in Ohio, Sherrod Brown, is now running for the other Senate seat from the Buckeye State, and he is apparently comfortably ahead in the polls. In a YouTube interview headlined "Sherrod Brown Is BETTING His Comeback on Working-Class Voters," Brown argues for things like a renewal of the child-care tax credit and other realistic things that would improve voters' lives and maybe tempt some people to come back into the Democrats' column.

But the larger lesson here is that the Democrats who have said that only economic issues matter are on shakier ground than ever. I was beyond pleased to see that Democratic voters in Massachusetts absolutely trounced Seth Moulton in his run against incumbent US Senator Ed Markey. Moulton was one of the people who most loudly argued in late 2024 and 2025 that Democrats should only focus on "real issues" and not what he airily dismissed as "litmus tests," by which he meant issues that he personally sees no reason to fight for, pointedly putting civil rights for trans people on the chopping block.

Because Massachusetts is a safe Democratic seat, Markey was able to attack Moulton head-on on the trans athletes issue. Moulton tried the "if anyone was offended" dodge but refused to back off of his claim that his party needs to throw inconvenient people overboard. Good riddance to him. Even so, I doubt that anyone is arguing that Democrats should change their nationwide messaging for the upcoming midterms to focus exclusively on trans rights. Understandably not. Even so, the point is that the old tactic of saying that Democrats lose by being too focused on non-economic issues is bad politics everywhere, not just on the Boston Common.

What should Democrats focus on, beyond Brown's attempt to be an economic populist without misleading people? Jennifer Rubin's columns recently have been addressing that very question, exploring what can unite people who want to defend democracy and the rule of law but who do not agree with each other about many other issues. Her column yesterday included one of her best arguments to date, which is that the key unifying issue should be the Trump-Republican spree of corruption that we have all been witnessing with increasing disbelief.

Drawing lessons from the wonderful and surprising ouster of Viktor Orbán in Hungary's elections this past Spring, Rubin wrote:

For our upcoming midterms, there is no issue more powerful and timely than corruption. As Gallup reported, “Americans’ perceptions of government corruption in the U.S. are at their highest level in 20 years, with 89% of U.S. adults [including 90% of independents] saying it is widespread.” That’s 10 points higher than last year. Plainly, Trump’s nauseating self-enrichment has hit home, giving Democrats the perfect opening to vow to end the orgy of corruption and to advance credible reform (e.g., claw back Trump’s ill-gotten gains, end crypto scams, ban building monuments to himself, and demand full financial disclosure and stock trading bans for all three branches).

One can easily picture the "It's the economy, stupid" Democratic crowd doing a spit-take and shouting Rubin down, saying that none of the anti-corruption efforts would resonate with Real People because it could never put money in anyone's pockets. Rubin's point, however, is that it would be stupid not to focus on issues that get people's attention, which can go well beyond the the creaky "pocketbook issues" that Democratic consultants of all political leanings insist upon privileging to the exclusion of "niche" or "litmus test" matters.

Returning to the German election, then, Krugman is right that anti-Trump politicians and pundits in the US have seen their case for economic essentialism suffer a death blow. That is good news, because it means that -- to the extent that the midterm election results will be respected at all, which is not at all guaranteed -- Democrats can now be even more confident in broadening their lines of political attack. And not a moment too soon.

- Neil H. Buchanan

The Renaming of Lake Ontario is Even More Illegal Than I Originally Realized

2026-09-04T07:00:00.000-04:00

In my Verdict column on Monday, I explained why a lawsuit under the Administrative Procedure Act by either New York State or a business that faces financial harm could succeed in blocking the official changing of the name of Lake Ontario to Lake America. In an accompanying blog post that same day, I responded to counter-arguments that I anticipated the government would make if faced with such a lawsuit. Today I follow up by explaining that a lawsuit is now ripe and would be even stronger than I originally suggested.

As I noted in the Verdict column, when the Secretary of the Interior and the Board of Geographic Names (BGN) changed the name of the Gulf of Mexico to the Gulf of America, they failed to give effect to any of the considerations that, by law, it is supposed to take into account. Instead, they relied on a BGN policy that exempts geographic names chosen by the President from the ordinary procedures and considerations. However, the BGN had no authority to adopt a policy that supersedes the statutory framework created by Congress. Thus, that name change was unlawful and could have been (and still can be) challenged.

I assumed that the BGN would change the name of Lake Ontario using the same expedited and unlawful process that it used for the Gulf of Mexico. In fact, what appears to have happened is even more illegal. Here is the sequence of events:

August 27: Trump issues Executive Order (EO) 14422 directing the Secretary of the Interior "in coordination with the Board on Geographic Names" to change the name to Lake America.

August 27 (later in the day): Interior Secretary Doug Burgum issues a Secretarial Order, SO 3453, the operative provision of which states: "The BGN is ordered to immediately take all actions necessary to rename the feature currently known as Lake Ontario to Lake America, including updating the Geographic Names Information System" (GNIS).

August 27 (still that same day): The GNIS is updated to reflect the new name.

Notice what apparently did not happen between the Secretary's order to the BGN and the updating of the name: the BGN did not take any action, and yet the lake's name was changed in the GNIS anyway, presumably by professional staff. But on what authority?

My research indicates that the usual procedure is for the BGN to make substantive decisions on name changes, which are then implemented by staff. The BGN is part of the US Geological Survey, which is in turn part of the Department of the Interior, so it's possible that the staffer responsible for updating the GNIS figured that an order from the Secretary to the BGN to do what the BGN would inevitably do (in light of its policy with respect to names chosen by the President) was effectively an order to the staffer. That would be highly irregular and contrary to both law and usual practice but it's probably what happened.

The only other possibility is that, despite the complete absence of any public record of having done so, the BGN briefly met (perhaps via Zoom or telephone) and rubber-stamped Secretary Burgum's decision in between his having issued SO 3453 and the change to the GNIS. I suppose it's possible--though it very much strains credulity--that during such a brief meeting, the BGN could have considered the interests of the public and state agencies, as required by statute, and nonetheless concluded that renaming Lake Ontario was a good idea. I thus tried to find out.

Yesterday morning and then again several times throughout the day, I called the only phone number publicly available for the Domestic Names Committee of the BGN. Each time I received a recording saying the phone was busy. I also sent an email at 9:20 am yesterday to Shellie Zahniser, who is listed on the BGN website as the Executive Secretary for Domestic Names. This is the body of what I wrote to Ms. Zahniser:

I am a law professor interested in administrative law. I am trying to determine what formal action the U.S. Board on Geographic Names took concerning the renaming of Lake Ontario as Lake America following the Interior Secretary's Order 3453 of August 27, 2026. I have been unable to find any public indication that the Board took any action; yet the GNIS has been updated to reflect the renaming. Did the Board's Domestic Names Committee meet, vote, or otherwise take formal action concerning the name change? Did the full Board take any formal action? If so, could you please provide (or direct me to publicly available information containing) the date of the action and any minutes, resolution, decision record, or other document memorializing it? If there was no meeting or vote, could you please explain what BGN action or procedure resulted in the Lake America entry being added to the GNIS?Thank you very much for any assistance you can provide.

As of this morning, I have not received a reply. If I do receive one that is remotely responsive, I will post an update.

Where does that leave things?

It turns out I was mistaken in my column and my blog post on Monday in my assertion that it was too early to file a lawsuit. I had assumed the BGN would follow the same unlawful and rushed procedure it had followed in the Gulf of Mexico case, but instead, it appears that the BGN was either completely bypassed (which seems most likely) or acted incredibly swiftly. Either way, it is now open to New York State and any other aggrieved parties to sue the Secretary and/or the BGN.

Beyond that, my original analysis is strengthened. The procedural irregularity in the renaming of Lake Ontario goes beyond what we saw with respect to the Gulf of Mexico--which was itself fatally flawed because the BGN in that case did not give any consideration to the statutory factors. Here, the BGN apparently did not even act.

The most--indeed the only thing--that can be said in favor of what happened here is that it was honest. President Trump issued an unlawful decree, and so a Cabinet Secretary and probably a staffer somewhere in the agency he oversees acted with the utmost alacrity to ensure that Trump's will was carried out without delay, any concerns about the process and relevant considerations mandated by Congress be damned. By contrast with other illegal actions the Trump administration has tried to thinly veil with legal justifications, here there was no pretext that the agency needed to do what it did in order to enforce the Voting Rights Act, to combat the nonexistent flow of fentanyl across the norther border, or to address antisemitism. The rapid unfolding of orders being given and followed is thus bracingly clarifying about the true nature of the Trump regime.

-- Michael C. Dorf

My Failure as an Indoctrination-Crazed Lefty Professor (Part 2 of 2)

2026-09-03T12:04:32.042-04:00

According to a former US Justice Department lawyer in a whistleblower disclosure, the Trump Administration's attacks on American colleges and universities over alleged antisemitism were "rushed and incomplete or ... failed to establish legal violations by the schools." As reported by AP:

The complaint alleges that the investigations into some of the nation's most prestigious academic institutions were designed to strong-arm the schools into cutting deals for political purposes. Outcomes of the investigations were "predetermined, without regard to the evidence" in a "politically mandated effort" to extract money from schools through settlement demands and funding freezes under the pretext of rooting out antisemitism, the complaint alleges.

I know, we are all shocked, shocked that there is dishonesty going on here. These are serious matters, of course, and the problem is in fact much larger, because although the whistleblower is surely correct that "extract[ing] money" was one goal of the White House, the ultimate aim has been to force American higher education to generate ideas that are agreeable to conservatives and then to teach those ideas as gospel to our students. As I once put it:

[T]he Republicans are ... frothing against the universities with ever-increasing intensity. From perpetual-candidate Rick Santorum's claims about "liberal indoctrination" of our gullible youth to tallies of the party affiliations of university professors, there is a well financed army of people whose job it is to claim -- loudly and repeatedly -- that universities are illegitimate because they are too liberal.

I wrote those words in 2017, and the hot link in the second sentence leads to a column from 2013 in which I wrote that the frequent Republican also-ran had attacked President Obama as "a snob" for promoting college education, with Santorum then "rais[ing] the specter of 'some liberal college professor trying to indoctrinate' people, and he said that Obama wants people to go to college so he can 'remake you in his image.'"

And now we are back to the I-word: indoctrination. Part of the Republican playbook, at least since the early Cold War if not before, has been to attack what is arguably America's most unique asset: a system of higher education that is absolutely dominant in the best way, drawing students and researchers from around the world to do their work and to learn here. Republicans hate professors who are not toeing their party line, and because our job is, not to be coy about it, to risk pissing powerful people off by saying things that might be true but unpopular, we professors do not toe anyone's party line.

But wait, are professors not mostly registered Democrats? Which party would you support in a world in which one of them is telling you that you are an indoctrinator who needs to be fired or worse, while the other (with too many lapses) generally understands the point of independent universities? Moreover, even left-leaning academics were critical -- often harshly so -- of Obama and Bill Clinton, with no one trying to "remake you in" Obama's image or anyone else's.

In Part 1 of this column yesterday, I focused on a particularly entertaining example of the Republicans' longstanding fixation on the claim that a bunch of lefty professors are indoctrinating America's youth. On his corporate-financed summer road trip with his wife and nine children, Transportation Secretary Sean Duffy said, with a straight face and without a hint of self-awareness, that Harvard -- the focus of so much of the American right's rage -- has "professionalized figuring out how they can take good young girls like [Duffy's daughter] and, I think, corrupt their minds," adding that Harvard is "so good at it. You’ll see young people go to a conservative school with a conservative family, and they get perverted and contorted."

Duffy is hardly an innovator here. He is simply repeating what he has heard for years in his right-wing monoculture about the big, bad Crimson monster. Indeed, his one skill seems to be to repeat what he sees people around him doing.

For example, in a Senate oversight hearing in May at which Duffy's road trip was at issue, he channeled former Attorney General Pam Bondi's one lasting gift to American political discourse: showing up with a slam book of oppo research on all of the Democratic senators, refusing to answer their questions, and instead throwing accusations at them. (From a New York Times report: "'Do you have jurisdiction over law firms?' Mr. Duffy asked Senator Kirsten Gillibrand, Democrat of New York, accusing her of having accepted millions from trial law firms.")

When that tactic failed during questioning by Senator Patty Murray of Washington, Duffy resorted to a classic: "Do you hate America? Don’t you want to celebrate America? It’s our birthday." Yes, when asked why a cabinet secretary would be accepting gifts from companies that his department regulates, the answer is to attack the questioner's patriotism.

Put simply, Duffy's nonsense is nothing new and lacks even a slightly interesting gloss. And that is why he is such a good example of the right's blind hatred of American universities. He is certain that there is indoctrination going on, and although he cannot prove it -- he does not even try -- he never stops to question what he has been told to believe. It is almost as if someone indoctrinated him. Hmm.

So Duffy is simply a standard-issue Trump-era Republican. As I pointed out in Part 1 of this column, however, the more interestingly twisted part of that story arrived when one of the Christian conservative columnists for The New York Times responded to Duffy by disagreeing in the most damaging way possible. David French, as I noted at length, claimed to know that Harvard in particular truly is a terrible bubble within which evil indoctrinators lurk. He said that if Duffy's daughter goes to Harvard, her "[r]adical peers, professors and administrators are far better at stigma than persuasion."

Radical, dude. French claimed to know from his own days at Harvard Law how bad things are, but I pointed out that (even if he had been there much more recently than the early 1990's) Harvard Law students have no regular contact with undergraduate students and have no idea what it is like at the College. I should add that the faculties are likewise separate entities, with law professors only rarely crossing into Harvard Yard and the professors who teach undergraduate courses typically having no business being in the law quad.

More importantly, French's claim to fame is that he was the president of a litigation shop that exists entirely to pursue cases against supposedly closed-minded radical lefty professors and their institutions. Even if French had gone into that job with an open mind (and it is clear that he never would have been interested, or hired, if he had been), how could he not come out thinking that places like Harvard are demonic? Insurance adjusters can come to believe that everyone lies about their injuries. Anti-academic zealots who seek out people who are willing to sue Harvard are simply marinating in the right's favorite fantasies.

But French does ultimately disagree with Duffy, saying that academia's definitely-not-imagined radicalism is at worst unfortunate, bad for the liberal students but good for conservatives, because "exposure to very liberal students at Harvard would have given [Duffy's daughter] a well-rounded education. Her liberal classmates? Not as much. When you are surrounded by like-minded people, your ideas are less likely to be tested."

French does add that "[n]one of Harvard’s sins justify the Trump administration’s attacks on its academic freedom," which I suppose counts as a generous concession to the sinners, but everything that he writes there reinforces the tendentious idea that life is miserable for conservatives and a walk down easy street for liberals at places like Harvard. Again, he comes by that dishonest conclusion honestly (having immersed himself in anti-university gospel for so long), but he uses the "Hey Sean, she'll be safe ..." assertion to emphasize that closed-minded people will be safe from the sickos at Harvard who truly are trying to shut everyone else down.

Moreover, he allows that college students are not "little lumps of clay, ready to be molded" in a professor's image. So, yay? All of those radical peers, professors, and administrators (?!) are wasting their time being intolerant? Better than Duffy's inanity, to be sure, but still promoting the long-term attack on academia.

Turning finally to non-pundit sources, Julie A. Reuben, an education professor at Harvard, began an essay in an academic periodical (the Chronicle of Higher Education, or CHE) on February 20, 2024 with this: "Charges that American colleges indoctrinate their students with liberal dogma have been around for decades." The idea of "lefty campus indoctrination" has always been a staple of culture wars -- indeed, since before anyone even applied that martial metaphor to the litany of right-wing grievances.

Back in 2017, CHE published "Why Conservative Fears of Campus Indoctrination Are Overblown," by Robert Maranto and Matthew Woessner, two professors who described themselves as "Republican political scientists with a combined half-century of experience in higher education and more than two decades studying political correctness," in which they wrote that

the conservative fixation on political correctness is, in fact, misdirected. One of the right’s main worries about campus culture is that the left’s dominance of academe is so widespread and powerful that it leads to leftist indoctrination or conservative alienation. Incidents at a handful of colleges ... seem to suggest that conservatives in academe, both teachers and students, are hopelessly out of place, in need of refuge or rescue.
These fears are overblown.

I would be remiss if I did not point out that it is odd for two professors to describe themselves as having spent decades studying political correctness, because that term -- like "woke" and "cancel culture" -- has no objective definition and is simply an infinitely elastic term to apply to "things conservatives don't like." To give Maranto and Woessner the benefit of the doubt, however, it is possible to study people's reactions to imaginary things, such as the scholars who study conspiracy theories and other group psychoses.

Either way, it was important that the Republican professors told people like Sean Duffy (nine years in advance) that they were worried over nothing. Pre-echoing French, they write that "most undergraduates are not ideologically pliable. By the time they reach college, most students have developed a political point of view."

But is that good? I have often responded to claims of lefty indoctrination by saying that "we're obviously pretty bad at it," but that hides the truly worrisome reality that even eighteen-year-olds are essentially unwilling or unable to critically re-examine beliefs based on new information. And "new information" can include something as simple as explaining that there is are massive differences between communism, socialism, Marxism, Stalinism, and all of the other things that the American right mashes together into a uni-smear. Would I be indoctrinating students in my lefty ways by simply telling them that democratic socialism and socialism are different things -- or that informed people honestly disagree about what each of the -isms mean?

Apparently that would be bad for Republicans, because they want people not to understand the differences. And again, people like Duffy, Trump, and most of the rest have no idea that there are any differences, because they reject learning new things that are inconvenient to them.

So if it were up to me, students would at least be open to reconsidering their unexamined beliefs and possibly change their minds. But apparently that would be bad, because then they might believe something new and scary.

Finally, is there any evidence about how this supposed indoctrination works? Two empirical researchers, reporting on survey data that they had analyzed, offered their broad conclusion in the title of a very recent CHE piece, "Yes, Higher Ed Shapes Students’ Politics. Here’s How," with the sub-headline, "Different disciplines have different ideological effects."

Dorf on Law is not, of course, the platform on which to engage in a technical critique of the authors' survey methodology or statistical techniques. I will note that they did go through the appropriate steps to try to filter out self-selection effects, which is important. I will thus take their conclusions seriously in the sense that we can assume for current purposes that the results are technically robust. They conclude that

changes in political orientation differ sharply by field. Students in the humanities and social sciences move substantially to the left during college. Students in business and economics, by contrast, change little and remain among the most right-leaning groups at graduation. Students in engineering, the natural sciences, health, and education fall between these two poles: They move somewhat left, but less than students in the humanities and social sciences.
And yet, these shifts are not uniform across policy issues.

That is certainly interesting (although "move substantially left" is a bit much), suggesting that those of us who doubt that higher ed can indoctrinate people are wrong, at least in some fields and on some issues. Their results are, however, numerically small and in no way support the idea that college students fall under the spell of Svengalis with evil in their hearts.

More importantly, however, there is no indication how long any such effects last. The study is based on surveys of students "self-identified political orientations, both just before they begin college and again near the end of their undergraduate studies." Importantly, there is no followup in later years. The "change" reflects what 21- and 22-year-old students are saying as they are facing their last set of exams.

Does this matter? Of course it does. It is a cliche to talk about things that "I experimented with" in college, from substances to "that one night that my best friend and I don't talk about." (Think of the episode of "Friends" when Rachel's college gal-pal shows up and reminds her of that one special moment: "The One with Rachel's Big Kiss.")

Yes, people sometimes discover themselves and embark on truly different lives because of experiences in college, but Father Guido Sarducci's "Five-Minute University" -- arguing that it is possible to teach in five minutes "what the average college graduate remembers five years after he or she is out of school" -- is iconic a half-century later precisely because we know that college is a transitional phase. Good or bad, it is simply true that the effects of college fade over time, sometimes rapidly.

Even though "taking evidence seriously" is one of those supposedly lefty things that Republicans tell people to ignore -- from climate change to every other part of their war on reality -- one might think that this would be good news to them. The evidence shows that one of their greatest fears is unfounded. Aha, but that itself is a problem, because they like being able to say that universities are hotbeds of liberal indoctrination. And anyone who dares to try to tell them otherwise will not be politely received.

- Neil H. Buchanan

Standing Doctrine in Environmental Cases Was Always Too Strict. After the Ballroom Case, It's Impossible

2026-09-02T07:00:00.000-04:00

In Monday's per curiam opinion in National Park Service v. National Trust for Historic Preservation, the 5-4 majority said that a setback to an aesthetic interest in observing historic sites (such as the White House before Trump took his wrecking ball to it) is not a sufficient injury to confer Article III standing on an individual or group of which that individual is a member. The dissent by Chief Justice Roberts and the Supreme Court's three Democratic appointees argued that the per curiam misapplied the Court's standing precedents, especially Lujan v. Defenders of Wildlife. The dissent is correct. The Lujan Court said that indefinite plans to visit a region in the hope of observing members of an endangered species are not a sufficient interest under Article III but, citing earlier cases upholding standing for environmental plaintiffs, the Lujan Court acknowledged that someone with a particular professional or other interest in an animal species would have standing to complain about actions that further endanger that species.

The National Park Service per curiam said that the foregoing acknowledgment set forth a necessary but not a sufficient condition for standing. It was not enough that people who complained about harm to a national park wanted to observe nature, the per curiam said; they also had to use it. As the dissent showed, that's pretty plainly incorrect even on its own terms.

The Chief Justice acknowledged that in some of those prior cases, the plaintiffs didn't just want to look at nature, but "also liked to use it by fishing and swimming in it and by hiking and camping alongside it. . . . Certainly one may enjoy a river not just by looking at it but also by swimming in it and hiking along it. But the principal way a person enjoys a historic building or object is by looking at it." Thus, the dissent concluded that the member of the National Trust whose interests were identified--Alison Hoagland, who has played a longstanding leadership role in historic preservation--was analogous to the environmental plaintiffs whose standing had been recognized in prior cases.

Why did the majority disagree? A cynic might say that they merely wanted to please or to avoid angering Trump. But we need not go down that road.

Apparently underlying the per curiam was a concern that allowing standing in the ballroom case would give everyone standing to challenge every government action that changes the appearance of any government property. The Court more or less said as much when it treated the alleged injury as "mere offense, disagreement, or distaste," which anyone can experience, as opposed to the destruction of something of particularized concern to Hoagland and thus not to just about everyone. Thus, perhaps another way of understanding the per curiam is as cutting back on the environmental precedents. In this view, even profound individualized interest in some subject doesn't translate into Article III injury when that subject is damaged or destroyed, unless one is deprived of something beyond the ability to observe the subject.

I suspect that is in fact the view of a majority of the Court. If so, it should not have been the basis for Monday's order because it would be a change in the law--and emergency relief is not supposed to be based on a change in the law. Unfortunately, however, that ship had already sailed. The Roberts Court now rather routinely grants (or withholds) emergency relief based on what it intends to change the law to.

For example, in Trump v. Wilcox in 2025, the Court granted emergency relief based on the fact that the lower courts had faithfully applied Humphrey's Executor v. United States because a majority of the Court (that time including Chief Justice Roberts) intended to overrule Humphrey's, as it then proceeded to do this year in Trump v. Slaughter. Put differently, in assessing the likelihood of success on the merits in cases on its emergency docket, the Court does not ask what the current law is but whether the party seeking relief is likely to succeed on the merits based on what a majority of the Court plans to do in the future, including overruling its precedents.

Returning to the standing question, I hasten to add that I regard Lujan as wrongly decided for two reasons. First, the entire standing doctrine is made up. I understand the Court's wish to avoid giving advisory opinions and to control the federal docket, but that strikes me as at most a sub-constitutional, i.e., prudential, principle that ought to be defeasible by Congress, and in Lujan the plaintiffs relied on a statute that conferred standing broadly.

Second, the Court's standing decisions in environmental cases are downright perverse. Often the core animating purpose of environmental conservation laws is to protect various aspects of nature from degradation caused by human use. That's not to say that's the only purpose. The National Parks and National Forests are also protected against certain kinds of commercial exploitation and use, such as mining or cattle ranching, so that they may be used and enjoyed by humans in other, less destructive ways, such as by hiking or camping. But insofar as Congress will sometimes choose to protect nature from human use, it makes little sense to say that the only people with standing to challenge violations of the legal protections are those who themselves use the areas of nature in some way.

Protection for endangered species of dangerous animals is a nice example. Consider polar bears, which are currently listed as threatened under the Endangered Species Act. If the government is about to take some action that would cause allegedly illegal harm to polar bears in Alaska, the Court's precedents (especially Lujan) would give standing to someone who, contrary to their own interests in not being killed by a polar bear and to the interests of the polar bears in not having their habitat further disturbed, has concrete plans to go see the polar bears up close, but not to someone who simply cares deeply about the fate of polar bears, global warming, and the planet--despite the fact that in the citizen suit provision of the Endangered Species Act Congress attempted to confer standing on "any person."

That makes no sense as a matter of environmental policy, nor would more expansive standing lead to the flood of litigation that a majority of the Court apparently fears. For one thing, Congress has proven to be a responsible gatekeeper over the years, adjusting the jurisdiction of the federal courts to avoid litigation floods. For another, virtually no other constitutional democracy has such strict standing limits.

Put simply, in environmental cases, the ballroom case, and others, the Court's claim that it would violate the Constitution for it to allow concerned citizens to litigate against our law-breaking government is as unwarranted in law as it is in sound policy.

-- Michael C. Dorf

My Failure as an Indoctrination-Crazed Lefty Professor (Part 1 of 2)

2026-09-01T16:24:28.786-04:00

I taught in US colleges and universities for my entire 43-year career (with some visiting gigs in Canada and other not-America places along the way). I am politically progressive. Did I indoctrinate my students and change their political views to mirror mine? Not even close, nor did my colleagues (including my conservative colleagues). Even so, the unshakable belief that "liberal universities" are poisoning the minds of the young is an article of faith on the political right.

The drumbeat of panicky accusations against professors is omnipresent, but despite its stale familiarity, it is ever more important to push back against this disinformation at a time when the Trump White House is in full-on attack mode against American higher education. Here, I will have some fun with a particularly silly version of anti-university sanctimony from a Trump cabinet secretary and a New York Times columnist, followed (starting in Part 2 of this column later this week) by an analysis of what we in fact know about these issues as an objective matter.

But first, the fun.

One of the lightest of lightweights in the Trump Administration is Sean Duffy, a former reality TV performer who somehow found himself being tapped as the US Secretary of Transportation. Two Sundays ago, John Oliver's show began with a short summary of a beyond-cringe reality TV series, the "Great American Road Trip," that Duffy and his family created and appeared in this summer. Originally hyped with great fanfare by Duffy and Administration sources, the show ended up as a rump run of four episodes that were unloaded onto the web to be viewed by almost nobody.

For the purposes of this column, the key part of that segment was a contrived family drama about whether Duffy's daughter would attend Harvard College. Duffy and his wife apparently are horrified that their daughter would even consider going to Satan's playground, so they decided to show some of their surely-spontaneous discussion with her in their show. As we will see shortly, it is jaw-droppingly stupid.

What makes any of this worth an extended discussion here, however, is not Duffy's daft ideas themselves but the friendly corrective that he received in print from conservative New York Times columnist David French. As it happens, I recently mentioned French in passing in a column discussing people who know nothing about federal borrowing but who confidently present themselves as Very Serious People by saying empty-but-scary things about government debt. Leading into that discussion, I noted that French fills

a conservative slot at that paper but is not what I have pointedly described as a "conservative diversity hire." Even so, French yesterday revealed himself to be deeply shallow when it comes to his understanding of economics. (One example: "Unless I harm someone else, it’s not the government’s job to determine whether I’m virtuous enough to enjoy liberty, including economic liberty." Wow, now there is a clear guide for setting the rules of the economic game. "Economic liberty" means nothing without rules, so the idea that there is a no-government zone of freedom is as naive as it is useless.)

In the column to which I was responding, French was, to be very blunt, deep in dipshit territory -- and I mean deep, as in "Heart of Darkness" deep. And that truly is a problem, because he used that column to lay out his political philosophy, a decision that one can only call an unforced error. He unintentionally revealed that he has simply dressed up his ideological priors with a "freedom as a default" story, where his every deviation from that default has a just-so story to justify it and everyone else's deviations are dismissed as some version of liberals not trusting people to know what is best for themselves. It is honestly depressing to get a peek behind the curtain and find a self-important man presenting ad hoc prejudices as profound matters of philosophy.

That is a subject to which I surely will find myself returning someday soon, but my interest here is in the whole university indoctrination thing. And on that subject, I should emphasize that French was not veering out of his lane (as he was on economic matters, for example). His pre-NYT career was, in fact, spent litigating against supposed "cancel culture" on US campuses, which means that when he writes about campus issues now, his errors and misleading comments cannot be dismissed as those of an unfortunate bloke who is making rookie mistakes. Attacking universities is what drove the guy for years, but what he says here holds up no better than his simplistic paeans to liberty.

French begins his response to Duffy (which was published before Oliver's show ran, but which used the same widely circulated video clip that Oliver had shown) with a summary of the issue:

Rachel Campos-Duffy, a host of “Fox and Friends Weekend” and (along with Duffy) a former reality television star on MTV, talk about prohibiting their daughter from going to Harvard as an undergraduate.
The clip begins with Campos-Duffy saying that she’s “nervous” about her daughter Paloma going to Harvard. “We spent a lot of time nurturing and providing formation for our kids,” she said, “giving them an environment where they are steeped in faith and values.” It worried her to even think about dropping them off at a school that would “undermine that or try to undo all those things.”
The scene switches to a conversation between Duffy and Paloma, in which Duffy tells his daughter, “If I send you there, I think what happens is they have professionalized figuring out how they can take good young girls like you and, I think, corrupt their minds.”
Duffy told Paloma that she didn’t have to believe what he believes but he did not think that Harvard gives students a “well-rounded picture” of competing ideas.

Did I already say jaw-dropping? A supposedly sentient adult said on camera that the people at Harvard "have professionalized figuring out how they can take good young girls like you and, I think, corrupt their minds." French further quotes Duffy saying that Harvard is "so good at it. You’ll see young people go to a conservative school with a conservative family, and they get perverted and contorted." The response by French is obviously going to be better than that, and he in fact leads the piece by saying that the Duffys should allow their daughter to attend one of the most prestigious and selective universities in the world.

Pointedly, however, French says that doing so "would be good for [Duffy's children], and it would be good for Harvard." So we can all see where this is going. French is warming up to say that Harvard truly is both Sodom and Gomorrah but that those heathen need to be exposed to good conservative Christians like the Duffy kids. He calls the Duffy’s stilted conversation "relatable" and says that he has had conversations with conservative parents over the years who "wonder if they’re sending their kids into the lion’s den. The concern seems especially acute with young women — that they’ll leave home as Laura Ingalls and come back as Lady Gaga." He then drops this bomb:

Before you laugh at that idea, please realize that this perception is almost entirely the fault of elite educational institutions. They’re the ones that have created a left-wing ideological bubble. They are often extraordinarily intolerant of dissenting views. Peers and professors do sometimes make life difficult for conservative students.

Peers and professors sometimes make life difficult for all students, and there are plenty of professors and students who try to enforce right-wing rightthink, but never mind.

Notably, French holds himself out as something of an expert witness, a product of a conservative college who went to Harvard Law School and thus can testify that it is possible somehow to survive the professionalized corrupting of young minds. "I’ve experienced this myself, both as a student and as a lawyer ... My three years at Harvard were also three of the best years of my life, in part because they were so challenging."

So this invites me to offer myself as an expert witness as well, but only to testify that French almost surely knows nothing about Harvard College. He spent three years at Harvard Law, which means that he was from his very first day in Cambridge overwhelmed by the all-encompassing law school experience and has little to no personal knowledge of what the undergraduate experience is like today, or even what it was like when he was spending his days in the Law Quad.

Why is this important? I went to Vassar College for undergrad and then enrolled in the Harvard Economics Department's Ph.D. program. We graduate students had nothing to do with undergraduates, largely because we were so busy but also because the College students viewed us as outsiders who had not even gotten our BA's from Harvard. My contact with Harvard's undergrads was greater than most, however, for three reasons: (1) For many years, I was a teaching assistant for undergraduate courses in Economics and Social Studies, (2) I was the advisor to the undergraduate Speech and Parliamentary Debate Society throughout my graduate student career, and (3) 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.

Among those three factors that brought me into uniquely close contact with undergraduates, the second one was by far the most time-intensive and involved the most candid conversations with students who viewed anyone over the age of 22 as ancient. Not once did I hear anyone talk about hanging out with Harvard Law students -- and this, mind you, is a group of students who chose to join the debate team and in large numbers eventually went to elite law schools. They tolerated me, but almost all non-undergraduates at Harvard are simply living in separate worlds from the college students.

So "I was there, and I can tell you what it was like" depends on what the "there" is that one is describing. Saying that three years at Harvard Law gives one testimonial competence re the intellectual atmosphere at Harvard College is something like saying that I have been to Albany and thus know what things are like in Brooklyn Heights.

But French also relies on the years with his anti-"monocolture" litigation group, where he "represented student after student who was subjected to a sometimes shocking level of censorship, stigma and isolation at the nation’s most exclusive universities. Harvard has been one of the chief offenders." I wonder what the lawyers on the other side of those cases would say. More to the point, however, French's only attempt to provide anything resembling evidence is to say that his former group ranks Harvard "245th out of 257 colleges and universities it measures" for "free speech." And how is that determined?

Sadly, 47 percent of Harvard students report self-censoring at least once or twice a month; 79 percent of Harvard students say that shouting down a speaker can be acceptable, at least in rare cases; and 32 percent say that using violence to stop speakers is also acceptable, again in rare cases.
That’s a sign of a sick free speech culture. That’s Harvard’s fault, not Duffy’s.

No, that is a sign of a ridiculously unscientific survey method, coupled with willfully dishonest spin. How is it possible that only "47 percent of Harvard students report self-censoring at least once or twice a month"? I self-censor at least once or twice a day. That is what one does when interacting with other human beings in any society. And without knowing what those "rare cases" are, we can have no idea whether to be fearful or heartened about the survey responses to the "shouting down" and "using violence" questions.

Can French truly think of no instance in which shouting down a speaker would be acceptable, and no circumstance in which violently stopping speakers might be called for? And even if he can come up with no examples for himself, can he truly say that only in "a sick free speech culture" would other people be able to imagine extreme, rare cases? Does he believe that none of the students in the 79 percent and 32 percent are conservative, such that it is only the minds that have been captured by the imagined liberal monoculture that are sick? French has an awful lot of confidence in conclusions that are based on awfully flimsy evidence.

Even so, French somehow manages to come through all of that nonsense and emerge with an opinion that rejects the claim that American higher education is a vast left-wing indoctrination factory. As I will discuss at the beginning of Part 2 of this column later this week, he gets there in the most self-satisfied and unhelpful way possible, but a win is a win. After quickly dispensing with that, I will then move on to a discussion of more serious analyses of the question of campus indoctrination.

It should surprise no one that this hoary right-wing talking point withers under even minimal scrutiny.

-- Neil H. Buchanan

When Will Trump Try to Change "New Mexico" to "New America?"

2026-08-31T07:00:00.000-04:00

Residents of Albuquerque, Sante Fe, and other parts of New Mexico should count themselves lucky that Donald Trump is so ignorant that he is probably unaware of the existence of their state. Should he learn of it, then the next time that the Mexican government takes some action (or inaction) that displeases him, he would likely order the Secretary of the Interior and the Board on Geographic Names (BGN) to begin referring to the Land of Enchantment as "New America." After renaming things for himself (the Kennedy Center, the U.S. Institute of Peace, Palm Beach International Airport, dozens of Trump Towers, etc.), Trump's signature naming moves involve problematic throwbacks (Fort Bragg, Mt. McKinley), bombastic ones (Department of War), or a lazy default to "America"--as with the erstwhile Gulf of Mexico and Lake Ontario.

Or maybe not so erstwhile. In my latest Verdict column, I discuss Trump's executive order involving Lake Ontario. I explain that: (1) the renaming of Lake Ontario is not official yet, despite the fact that the cartographers at the world's third largest company have already adjusted Google Maps (as seen in the U.S.) so that the easternmost and smallest of the Great Lakes is now labeled "Lake America;" and (2) when the renaming becomes official, i.e., after the Secretary of the Interior and the BGN do Trump's bidding, it will be illegal. My column argues that New York State and/or businesses in New York that have "Lake Ontario" as part of their name (and will thus suffer economic harm from the name change) can and should sue under the Administrative Procedure Act (APA) to have the renaming blocked.

I hope my column speaks for itself. Here I want to anticipate and respond to three arguments that I imagine the Department of Justice might make to defend the renaming if and when New York or a Lake Ontario-themed business sues. (By the way, it's not too late for an APA suit by one of the states that borders the Gulf of Mexico, although those are all red states, so that seems unlikely. Perhaps a business in one of those states that has "Gulf of Mexico" in its name--and whose owners are not cowed by threats from their MAGA neighbors--might have the courage to sue.)

(1) In my column, I explain that New York has both substantive and procedural claims rooted in the compulsory language of 43 U.S.C. §§ 364–364f. On the substantive side, the Secretary of the Interior and the BGN are, by statute, supposed to be promoting "uniformity in geographic nomenclature." Creating confusion by abandoning a centuries-old name--but only on one side of the border and only for the federal government and those businesses (such as Google) sufficiently fearful of the impetuous President to obey in advance--hardly serves that purpose.

On the procedural side, I note that under §364b, the Interior Secretary and the BGN are supposed to give "full consideration to the specific interests of particular Federal and State agencies" in "formulat[ing] principles, policies, and procedures to be followed with reference to both domestic and foreign geographic names." I suppose that a bold DOJ lawyer could say that this language obligates the Secretary and the BGN to give state agencies consideration in the formulation of principles, policies, and procedures, but not to take account of the interests of state agencies in any given case.

That strikes me as a very bad argument on its face. Presumably the reason Congress instructed the Secretary and the BGN to formulate "principles, policies, and procedures to be followed" was so that they would, in fact, follow them. Moreover, as I explain in the column, things are even worse here because the BGN has another policy (Policy I.1 here) that purports to excuse itself from its statutory obligations whenever the President chooses a name. In other words, the BGN has formulated a policy that most certainly does not give full or even any consideration to the needs of state agencies whenever the President capriciously decides to change a geographic name. That is quite clearly contrary to the statutory framework.

(2) Might the DOJ argue that the President has inherent power to designate geographic names? This strikes me as plausible only to the extent that it concerns internal executive branch purposes. So, if Trump instructed all executive branch personnel in their intra-executive communications to refer to Lake Ontario as "Lake America," I acknowledge that would be permissible, albeit stupid. However, the executive order does not apply only to internal executive branch matters. Among other things, the name change it orders the Interior Secretary and the BGN to adopt applies to "contracts" that the federal government makes with private actors. Those are, by definition, not purely internal to the executive branch.

Does the President have any inherent power to create or change geographic names that apply outside the government, as in contracts with private parties? I don't see where that would come from, but even assuming there is some such power, it is surely defeasible by Congress, acting pursuant to its powers to regulate interstate and foreign commerce, to make rules governing public property (Article IV, § 3, cl. 2), and arguably more. Put in terms of Justice Robert Jackson's influential Steel Seizure concurrence, this is a category 3 case in which the President's already dubious inherent power to assign geographic names is at its "lowest ebb" in the teeth of Congress's directions to foster uniformity and account for state interests.

(3) The DOJ might say that President Trump is simply doing what his predecessors did, perhaps pointing to the change from Mt. McKinley to Denali during the Obama administration (which Trump sought to change back in an executive order he signed on the first day of his current term, the same one that directed the renaming of the Gulf of Mexico). But the change to Denali is entirely different. It began with a request from Alaska itself in 1975 and didn't become official for another 40 years when it was accomplished by the Secretary of the Interior and the BGN after years of study and consideration of the statutory factors. No one could plausibly argue that the change to Denali set any kind of precedent for ignoring state interests or for rushing through a name change to please a President who is acting in a fit of pique.

I'm sure the DOJ lawyers will come up with other equally bad arguments to contest an APA case by New York State or an impacted private business. I'm also pretty confident that anything the DOJ throws at the wall will get at least two and possibly as many as six votes from the Supreme Court. But that's true of just about everything. There's an opportunity here to undo one small but symbolically important bit of petty stupidity by the Trump administration. I urge the relevant lawyers to seize it.

-- Michael C. Dorf

Can the US's Political System Remain Stable in the Face of Growing Threats of Violence?

2026-08-28T11:04:10.219-04:00

Note to readers:

Last week, I wrote "Debt Fear-Mongering Has Moved from Mockable to Dangerous," discussing the carefully orchestrated public freakout over the -- all together now -- "forty trillion government debt." Over on Verdict, I have now followed up with a two-part column, "Questions About Federal Debt Are Serious, but the Wailing and the Gnashing of Teeth over the '$40 Trillion Debt' Are Not" (Part One yesterday and Part Two today). There, I dive into some of the technical details that I was unable to fit into last week's column, and I also discuss the more mundane -- but extremely important -- consequences of increases in borrowing, in particular how public (or private) borrowing can move interest rates and thus exacerbate affordability problems.

Because I hope that many readers will click over and read both parts of that column, I am keeping today's column here a bit shorter than usual. Enjoy!

------------------------------------------------------------

Using the now-passé story about Todd Blanche's confirmation as Attorney General of the United States as a starting point, I have recently been thinking about the nature of political violence in this country, with many of those thoughts gathered in yesterday's column. I have hardly been alone, given that political violence is becoming all but impossible to ignore as a real and growing threat.

Professor Dorf, for example, notes in a column earlier this week the very real concern that the upcoming midterm elections could be marred by violence. He describes (and explicitly agrees with) an analysis by Professor Ned Foley, who worries that a pro-Trump "rogue clerk" could refuse to certify the victories by Democratic congressional candidates this November. In that circumstance, legal redress (mandamus) should resolve the matter, but (in Professor Dorf's words) "Professor Foley worries that such a scenario could nonetheless spark a constitutional crisis and political violence reminiscent of (and perhaps even worse than) January 6, 2021."

More generally, at the end of a column two weeks ago, Professor Dorf wrote that, "through his grossly irresponsible statements and behavior (especially the J6 pardons), [Trump] has fostered an environment in which the actuality and threats of political violence have increased." The hot link there leads to a PBS piece from last September, "Analysis: What data shows about political extremist violence," which responded to (among other things) Trump gargoyle Stephen Miller's claim that left-wing political groups constitute "a vast domestic terror movement."

That analysis concludes: "Based on our own research and a review of related work, we can confidently say that most domestic terrorists in the U.S. are politically on the right, and right-wing attacks account for the vast majority of fatalities from domestic terrorism." Which is not to say that there are no violent actors outside of the groups of people who idolize Trump, but as the authors of the PBS analysis write: "[R]esearch shows that the majority of political violence comes from people following right-wing ideologies."

In my two pieces inspired by the Blanche disaster -- "Cowardly Senators and the Specter of Political Violence" last week and "Cultishness, Social Comfort, or Fear of Violence: Why Not All Three?" yesterday -- I wondered whether the three retiring Republican senators who flirted with taking a stand before capitulating to Trump were worried about being personally targeted with retributive political violence (against themselves and possibly their families). In a very odd sense, it would be uncomfortably comforting to imagine that their surrender was based on something that serious, because the only other explanations on offer are (as I described yesterday) their putative worry about being shunned at the country club.

In any event, there is a key difference between fear of violence as a general matter and as a personal matter. Although the January 6 insurrectionists were targeting specific people like Nancy Pelosi and Mike Pence, the general mayhem of that situation meant that death would be be nonspecific. That is, no Trump supporter set off to the Capitol that day saying, "I'm going to beat up some policemen and possibly kill some of them," unless they were also saying "or anyone else who stands in our way." Who would die -- if anyone -- was not their concern. And if things go sideways in the upcoming midterms, the thugs will go after "the poll workers" or people (most likely non-White people) standing in line to vote, but again with no specific intent aimed at a person who is identifiable in advance.

By contrast, the kind of fear that those three Senators might have felt or that Pence definitely felt is directed at them personally. Someone is threatening to kill them or their families. (As an aside, this category does not include chickenhawks like Senator Josh Hawley, whose profile in manliness was not in response to anyone going after him by name.) There are people who will threaten to kill specific political actors in an attempt to change their actions and decisions. And as a grim aside, some of those psychopaths would gladly kill their targets even after getting what they wanted.

"I'm going to kill you because ..." or "I'm going to kill you unless ..." is one category. "I'm willing to kill anyone who might stop us, and I don't particularly care if you're one of them or not" is another. Both are politically toxic, and unfortunately both are growing threats, mostly -- again, not entirely, but definitely mostly -- because of the right-wing cult that has taken over US politics. One would hope for voices of reason to step forward, but they too would worry about being targeted. This is why it is sensible to fear for the country's continued stability.

Cultishness, Social Comfort, or Fear of Violence: Why Not All Three?

2026-08-27T14:18:52.830-04:00

Because of the endless churn of the news cycle, the capitulation by three lame-duck Republican Senators to the Todd Blanche nomination not even three weeks ago is now very old news. In a Dorf on Law column last week, I discussed those three poseurs -- Bill Cassidy, John Cornyn, and Thom Tillis -- who preened about for a few weeks claiming that they might possibly, maybe oppose the obviously corrupt and dangerously anti-constitutional Blanche as (non-Acting) Attorney General. They all made plenty of noise and then, completely predictably, fell in line.

Why come back to that today? After all, the world now must contend with a declared trade war between Canada and the United States, as well as [quickly reloading the main page of the New York Times website to see what fresh hell awaits] the evil expansion of ICE activities to deport record numbers of powerless people (now specifically targeting people who are not criminals, thus no longer even pretending to go after "the worst of the worst"), threats to rig the US midterm elections, and everything else.

The short answer is that I ended last week's column with a rhetorical-ish question to which I planned to return, and I am nothing if not dogged. Before I get back to that question, however, I should emphasize the unique procedural fact about the Blanche nomination that I mentioned last week: Nothing was ultimately at stake. That is, during the brief time that the Three Stooges were pretending to be clever operators ("Oh, a wise guy, eh?"), Donald Trump announced that even if the nomination failed, Trump would simply keep Blanche in the office as Acting AG, as had been the case since Trump fired Pam Bondi in April.

This oddity does make it somewhat more difficult to assess what counts as a smart move in the Blanche nomination fight. My take has been that it should have turned the decision on how to vote into a free pass for any Republican who wanted to look statesmanlike. On the other hand, it arguably means that there was no reason to risk whatever downside might come from defying Trump. "Why spend even a farthing for naught?" one might reasonably ask.

Even if that is the better way to think about it, however, that merely puts us back where we started, because it requires asking exactly what it was that any potentially dissenting senator would be risking. What was the farthing, the shilling, or the pound? The three men in question were particularly interesting specimens, because the one big fear that everyone talks about openly -- being driven out of public office by a vindictive Trump -- had already happened in spades to Cassidy and Cornyn, while Tillis announced that he would not even try to run for reelection after Trump attacked him last year.

In essence, I boiled it down to two possible explanations (deliberately leaving aside the possibility that they are true MAGA believers), and because those three men's votes could not be explained by the relatively unscary option, I ended the column with this: "[T]hese dead men walking could not even stand up and make the easiest call in the world. What makes them still so afraid? What other explanations remain?" Why do I say that I had reduced the possibilities to only two explanations? Because I noted that Alaska Senator Lisa Murkowski (who did vote against Blanche, albeit not as the deciding vote) had talked last year about everyone being anxious about Trumpian retaliation, and I surmised that she meant something more than mean tweets and threats to back challengers in primaries. That is, violence.

In retrospect, using the phrase "dead men walking" at exactly the moment when I was trying to distinguish between the deaths of political careers and more literal deaths was a bit on the nose. In any event, it is important to consider whether there are other possibilities, and then to return to why I still find fear of literal violence to be the most important explanation.

The day after I published that column, I had the dumb luck to stumble upon an interview of the famed political scientist Norman Ornstein, who made his name mostly during his time at the conservative American Enterprise Institute and who teamed with co-author Thomas E. Mann of Brookings to write a bombshell op-ed in 2012, "Let’s Just Say It: The Republicans are the Problem," which made a splash as part of the rollout of their book It's Even Worse Than It Looks. Their uncompromising language was notable, especially coming from two very centrist/center-right commentators: "The GOP has become an insurgent outlier in American politics. It is ideologically extreme; scornful of compromise; unmoved by conventional understanding of facts, evidence and science; and dismissive of the legitimacy of its political opposition."

Ornstein's interview on Zeteo with John Harwood (formerly of The Wall Street Journal and CNN, among other very mainstream outlets) is almost forty-seven minutes long -- and very much worth the time -- and covers a wide range of topics, but I want to focus on two things he said that specifically relate to my not-actually-rhetorical question: What other explanations remain?

Harwood directly asked Ornstein about my Three Stooges and the Blanche debacle. Ornstein first offers (starting at the 7:03 mark) an explanation that mashes together the behavior of cults with the behavior of people who merely want to live pleasant lives: "I think there are a couple of reasons for this. The single largest one is ... you have to look at the nature of a cult. In a cult, the pressure to avoid being shunned or excommunicated is enormous."

Ornstein then, however, recalls how former Ohio Senator Rob Portman had been a Republican cultist and decided to leave office and retire to Cincinnati. Ornstein notes that Portman was not going to become a lobbyist or anything that would require continuing to cozy up to Republican power brokers, but Portman went home and "doesn't change a thing" -- that is, he did not suddenly say something like, "Whew, now I don't have to be the crazy liar that I needed to be while I cared about a political career, so now I can set the record straight and say what I honestly think."

Again, Portman did not do that, instead choosing to say nothing. Ornstein first offers this partial explanation:

Rob goes back, and he is going to go out and play golf with his friends ... and then have lunch at the country club, and then at night, he and his wife and a few couples might go to the City Club for dinner, and they'll be surrounded by the people they've been around for their entire lives. And the idea that they'd walk into a room and be met with hisses or cries of "Traitor!" or have friends refuse to talk to them was just too much.

Again, I think that Ornstein is conflating cults with the more normal demands of polite society, but in Portman's case, I think that both stories happen to fit. In any case, Ornstein is clearly saying that there are social pressures that are simply too strong for most people to resist. After I published my column, I received an email from a reader who thought possibly that "all of them may attend the same church." I honestly have no idea whether that is true, but they all certainly worship at the alter of going along to get along.

The same reader also suggested that "they believe Blanche is the man for the job to keep 'the world they know' in place. They are still old wealthy-white guys, who want to keep what they have." Although I do not see how Blanche as AG per se is necessary to allow them to keep what they have, the telling point is that voting for Blanche is necessary -- that is, not because of what any particular Cabinet member might do, but to avoid the social ostracism that Ornstein colorfully describes (regarding some of the least colorful people on earth).

But we now return to the main event, because Ornstein confirms my suspicions about the physical dangers of crossing Trump (starting at 8:50):

Donald Trump ... uses death threats, threats of violence against the family. And he doesn't have to do it directly. It is the same as in a crime family. 'It would be a shame if something were to happen to your family. Be a shame if something happened to your horse.' ... We know that when [Cassidy] cast the deciding vote for RFKJr ... that there were all kinds of stories from his colleagues that his family faced serious threats. I have little doubt ... that when it came to voting for Todd Blanche ... that he was fearful.

To be clear, Ornstein is not saying anything new here (and I doubt that he would claim to be doing so), but it is interesting to have someone as plugged into DC culture as he is sharing what he has heard from and about scared pols. His version of events does, after all, fit into what Mitt Romney revealed (far too late) about the threats that his then-fellow Republican senators faced in the post-January 6 Trump impeachment trial. In my October 5, 2023 Dorf on Law column, I quoted a report from The Atlantic:

[D]uring the Senate trial, [w]hen one senator, a member of leadership, said he was leaning toward voting to convict, the others urged him to reconsider. You can’t do that, Romney recalled someone saying. Think of your personal safety, said another. Think of your children. The senator eventually decided they were right.

Ornstein went out of his way to add this, regarding Cassidy specifically but ultimately about all of the Republicans who will not stand up to Trump:

My sympathy in this case is, shall we say, extremely limited. ... If you've decided you want to be a member of the United States Senate, and you can't do the right thing -- and in fact you decide to do what you know is ... the wrong thing -- ... you don't belong there in the first place. And instead of casting those votes, you should've just said, "No I'm leaving."

I happen to agree with Ornstein, but I do concede that talk is cheap. I have no way of knowing what the threats are that Cassidy and others have faced, and I cannot possibly know how I would respond if anyone I cared about were threatened in those ways. Even so, many people have defied Trump and lived to tell the tale. But as Ornstein's first explanation makes clear, if Cassidy had refused to cast a vote on Blanche, he still would have been kicked out of whatever his version of polite society might be.

When I asked last week what other explanations remain for cowardice and sycophancy after political viability is off the table, I ignored the social side of the story. But in any event, both ostracism and the threat of real violence are apparently palpable for those people, and that explains quite a lot about the United States in 2026.

- Neil H. Buchanan

Party Loyalty as a Legitimate Factor in Constitutional Law Cases or Legal Realism run Amuck?

2026-08-26T07:00:00.000-04:00

Author Disclaimer: The ideas expressed below may at first blush be deemed off the wall crazy by many of our readers. I would sincerely ask that before you summarily dismiss the notion that party loyalty might be an appropriate modality of constitutional interpretation, you keep an open mind. Especially for legal realists, this notion is a good test for the logical outer boundaries of our school of thought.

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In a provocative new essay forthcoming in Law and Social Inquiry titled "Partisan Teamsmanship and American Constitutionalism," Professor Gregory Elinson suggests that, given the importance of political parties to our representative democracy, perhaps party loyalty is a legitimate factor for Supreme Court justices to take into account when deciding constitutional law cases. The abstract concludes that "so long as parties remain institutional vehicles for vindicating core beliefs and principles held by the public, partisan teamsmanship by judges may be less dangerous to our constitutional system than contemporary critics of the Supreme Court presume."

Is this legal realism run amuck or an insightful perspective on how the Court has historically done its job and should continue to do so in the future?

The essay begins by recognizing what all of us should easily accept:

Under Chief Justice John Roberts’ stewardship, the Court’s Republican-appointed supermajority has consistently delivered high profile victories to Republican interests across a range of policy areas, including election law, administrative law, and major social issues like abortion, affirmative action, and the rights of transgender individuals. The Roberts Court’s ties to the Republican Party are further evident in the justices’ prior professional experience. Every member of the Court’s conservative majority has been active in the Federalist Society, the organization that has long anchored the conservative legal movement. And with the exception of Justice Amy Coney Barrett, the Republican appointees who voted to hold, in Dobbs, that the Fourteenth Amendment does not confer an individual right to an elective abortion previously held executive branch positions under Republican presidents. Three—Justice Barrett, along with Brett Kavanaugh and the Chief Justice—helped to litigate Bush v. Gore. And two—Justices Samuel Alito and Clarence Thomas—have maintained close personal relationships with prominent Republican donors and activists while on the bench.

Elinson then points out that most legal scholars along with the public at large, while recognizing that ideology and politics will affect legal decisions, also believe that party loyalty should not be the basis of or even relevant to the Court's constitutional law decisions. It is that assumption that Elinson challenges in this essay.

His argument centers mostly around two crucial historical periods in our constitutional history: Reconstruction and The New Deal. Relying on books by Mark Graber and Laura Kalman, Elinson argues that party loyalty motivated how the Supreme Court was staffed during those eras and how the Court acted at those critical moments.

It is common ground that the Republicans in the 1860's and 1870’s and the Democrats in the 1930's and 1940's, both in the Executive Branch and on the Court, were motivated strongly by party politics (just as the Roberts Court is today). Elinson argues that, "entrepreneurial political actors understood that determining what the Constitution meant and how it would function in subsequent generations was too important to be left to their party rivals to help decide. Accordingly, members of each era’s dominant party sought to make constitutional decisions with their partisan consequences well in view." Based on this history, Elinson makes the following claim:

The case for constitutional law qua law is that it is supposed to prevent one party (or faction or social group) from seizing the reins of government to revise the Constitution to its own benefit. But if our constitutional tradition involves the opposite, particularly during those times in our history where the political stakes were highest, it is important to revisit what we think we know about the relationship between partisan teamsmanship and constitutionalism.

I am a hard-core legal realist, and as readers of this blog know, firmly believe that ideology, values, and experiences drive the Court's constitutional law decisions, not the justices' usual nods to text, history, and precedent. But I have also always argued that party loyalty and partisanship are subsets of and not the same as ideology writ large.

In modern times, for example, Justices Blackmun, Souter, Kennedy, and White often voted in ways inconsistent with their party's preferences, and in Kennedy's case, that disconnect kept abortion rights and affirmative action alive much longer than the GOP would have liked. Throughout American history, as I am sure Elinson would concede, there have been numerous justices who have not placed party over ideology. On the other hand, Elinson persuasively demonstrates that party loyalty has been a driving force at the Court during important constitutional moments (as it is today).

Let us assume that Elinson's descriptive account is correct. Should party loyalty be recognized as an appropriate modality of constitutional interpretation, along with text, history, precedent, morality, and consequences? That is the interesting question raised by his essay.

The most persuasive argument for this counter-intuitive idea is that, if in fact at important times in our constitutional history party loyalty was a motivating factor for the justices' decisions, as it is today, then as a matter of transparency the justices should "come clean" and discuss partisanship in their decisions. For example, the Roberts Court's dismantling of the Voting Rights Act has been motivated in large part by the justices' desire to make it easier for the GOP to win elections. Does anyone think that if people of color voted overwhelmingly for the GOP those decisions would have come out the same way? The legally dubious cases from Shelby County to Callais are best understood as party loyalty decisions, so wouldn't it be refreshing to hear the GOP justices explain why they think it is so important for their party to amass as much power as possible rather than the borderline-frivolous "legal" arguments actually set forth in those opinions?

One response to that suggestion may be that it is not the Court's job to further the interests of political parties but to interpret the Constitution as honestly as possible. To the extent that certain Supreme Courts in particular eras were motivated by party loyalty, the public at- large and legal scholars should not affirm that practice but condemn it in the hope that the justices will listen and act better. Furthermore, even if party loyalty inevitably affects the justices' decisions, they should work hard to be self-aware enough to know that and try to avoid partisan temptations as much as humanly possible. That approach would certainly be the one most people would prefer.

But interpreting imprecise constitutional text and contested historical accounts is a messy business because those modalities underdetermine constitutional litigation. What the originalists call constitutional construction requires normative judgments that cannot be gleaned from traditional legal sources. Some examples will clarify this point.

There have been four Supreme Court decisions affirming gay rights in our country's history, and all four were written by Justice Anthony Kennedy, a life-long Republican appointed by Ronald Reagan. One might wonder: why? The most persuasive answer is that Kennedy had a close relationship with a prominent lawyer and Dean of a law school who was a closeted gay man. Kennedy saw firsthand the indignity and pain the closet caused his close friend. That perspective affected how Kennedy viewed the Constitution's open-ended due process and equal protection clauses.

Similarly, Justice Antonin Scalia loved guns and hunting, Justice Ruth Bader Ginsburg was strongly devoted to gender equality, and Justice Thurgood Marshall's most important value was fighting racial discrimination. Those justices voted consistently with their prior political and personal preferences. I have always believed that they should have explained their constitutional visions in the context of their experiences and values. True stories are more powerful and persuasive than dubious interpretations of text and history. If party loyalty plays a large role in the justices' reflections, either on or below the surface, then arguably the justices should justify their decisions with authentic reasons why that is so.

On the other hand, legal scholars and the justices themselves (especially when they are at their Senate confirmation hearings) say the goal should be to eliminate personal values from the justices' decisions as much as possible. While the justices will never be able to completely eliminate the impact of their values and backgrounds, on this account their task should be to do so as much as they can. It ought to be easier to consciously discount party politics than it is to distance oneself from one's own conception of, say, "equal protection" or what counts as an "unreasonable search." So even if ideology inevitably affects judicial decision making to some extent, party loyalty shouldn't and mostly wouldn't, on this standard view.

Elinson might respond, however, that Republicans in 1870 and Democrats in 1936 knew that the political goals they held most dear were only possible through partisan victories on and off the Court. Thus one cannot separate strengthening one's political party through Court decisions from specific constitutional visions such as those associated with the goals of the Reconstruction Amendments (a county with greater racial equality) and the attempt to handle the Great Depression by the successful implementation of the New Deal (more extensive government regulation of the private sector).

Elinson's thesis that party loyalty might be a legitimate factor in constitutional cases will likely be dismissed summarily by most lawyers, scholars, and judges. But he raises serious questions, especially for legal realists. In that regard, Professor Elinson has challenged widely held assumptions about how the Supreme Court has and should decide constitutional questions. I strongly recommend the essay.

Eric Segall

Could Mike Johnson Foil a Democratic House Victory? Yes, But Only With Help from the Supreme Court and/or Red States

2026-08-25T09:55:40.621-04:00

Inspired and aided by President Trump, Republicans have been pursuing multiple pathways to give themselves advantages in the upcoming midterm elections. In that endeavor, they have been assisted by their Republican-appointed allies at the Supreme Court. Yesterday the Court issued a per curiam opinion in Trump v. California allowing the administration to proceed with its plan to use the Post Office to foil mail-in voting. Although the decision purports not to be on the merits, it necessarily is--because likelihood of success on the merits and irreparable harm are, as the Court acknowledges, key to winning a stay. Yet, as Justice Jackson explains in dissent, the president has no lawful authority to regulate elections absent a delegation from Congress, which he has not received.

Trump v. California is hardly the only example of the Supreme Court's faux-naïveté in the service of Trump. The past Term's decision in Louisiana v. Callais (further) gutted the Voting Rights Act. Callais green-lit disenfranchisement of Black voters and thus made it easier for red states in the South to engage in political gerrymandering.

In Callais, the Court ignored the fact that few Black voters are Republicans or treated that fact as just some odd coincidence, while in Trump v. California it pretended that the current administration wants the Post Office to interfere with mail-in voting because of some genuine concern about enforcing laws regarding voting fraud. The tipoff comes in the per curiam's opening line: "The President recently issued an Executive Order regarding election integrity." Really? The executive order recites "integrity" in its title but that doesn't mean that it has regard for integrity--except in the sense that it aims to undermine election integrity.

What happens if, despite these and other efforts, Democrats manage to win a majority of seats in the House? We saw in 2020 that losing a presidential election did not stop 8 Senators and 139 House members, including now-Speaker Mike Johnson, from voting not to certify electors from a number of states that Joe Biden won. And that was right after Trump's mob had stormed the Capitol building. Could we see a reprise in which Speaker Johnson and other Republicans cite bogus claims of election fraud or other alleged irregularities to prevent enough Democrats from taking their seats so that Republicans maintain control of the chamber?

That scenario worries a number of commentators, as indicated in this substack post by retired federal Judge J. Michael Luttig. That post and some of the pieces Judge Luttig cited inspired a response by Robert Hubbell objecting that under the Constitution, the old House has no official role in the seating of the new House. Judge Lutting then responded that Hubbell had misunderstood him and David French about who does the counting and certifying.

For what it's worth, I think that references to "lame duck" by French and Judge Luttig's own discussion of the role of current House members indicate that Hubbell did not misread them or at least that French and Judge Luttig had been unclear initially. However, I don't want to referee this friendly disagreement among commentators who all share with each other (and with me) a concern for protecting American democracy. Instead, I'll simply pose the question directly: If Republicans wish to block Democrats from taking the House despite the latters' victory, can they do so?

The answer depends on what one means by "can"? Can they do so legally? As I'll explain, no. Can they do so illegally and get away with it? As I'll also explain, maybe.

Hubbell makes much of the fact that, unlike the Senate, the House is not a continuing body. It must be reconstituted every two years. There are four key steps: (1) States certify winners of their respective House districts in accordance with state law; (2) pursuant to 2 U.S.C. § 26, the clerk of the House of Representatives creates a roll of those persons certified by their states; (3) members of that roll elect a Speaker and otherwise organize the House; (4) the now-organized House adjudicates any contested seats.

That sequence is crucial. If Democrats are certified as winners of a majority of House seats by their respective states, then the clerk, who is a non-partisan official, has no discretion to keep them off the rolls. And if that happens, Mike Johnson won't be the Speaker, and the Republicans would not be able to determine that one or more Democrats were not properly elected at step (4) because they would be in the minority.

Ah, but what happens if the clerk, perhaps a new Republican loyalist clerk appointed in December, goes rogue? Suppose at step (1), the rogue clerk says that the certificates of some number of Democrats are defective and excludes them from the rolls? Professor Ned Foley addressed this scenario in an excellent essay late last month. I agree with Professor Foley that in such circumstances mandamus should be available for an unlawfully excluded state-certified House winner. Professor Foley worries that such a scenario could nonetheless spark a constitutional crisis and political violence reminiscent of (and perhaps even worse than) January 6, 2021. I agree with that worry as well, and I have a further one.

The further worry is that even though mandamus should be available, it might not be. There are multiple ways in which a lower court--or a lower court ordered by SCOTUS--could aid an unlawful scheme by a rogue clerk. Here are two. First, the court could say that, notwithstanding the non-discretionary duty, the case presents a nonjusticiable political question because . . . reasons. Second, the court could slow-walk the case and not issue injunctive relief (or SCOTUS could stay injunctive relief issued by a lower court) so that the bogus roll excluding some Democrats is still in effect when the Speaker is chosen and the House is organized; then, the Republican-majority House could officially exclude the Democrats. And I wouldn't underestimate the ingenuity of the Republicans' lawyers in crafting additional absurd arguments that the Supreme Court then accepts.

Thus, in addition to Professor's Foley's worries about political violence sparked by the rogue clerk scenario, I worry that the courts could turn a plainly unlawful power grab into one that isn't stopped by the courts.

Meanwhile, there is another worrying possibility. One or more red states might refuse to certify Democratic winners in their states long enough that even an honest clerk cannot include them in the roll. Even with political gerrymandering, red states usually send some Democrats to Congress. Their Republican officials responsible for certifying election results might cite bogus claims of fraud or other irregularities to delay certification or even to certify the losing Republican candidate as the winner. There too, mandamus ought to be available to address such chicanery, but as with the rogue clerk scenario, there is a worry that it might not be.

In the end, then, I'm with Judge Luttig in worrying about Democrats actually being able to take control of the House, even if I see the scenario slightly differently. Imagine that on January 6, 2021 Vice President Mike Pence had succumbed to the pressure and had discounted the certificates of enough states that had voted for Biden to throw the election to Trump. In the view of many constitutional scholars (including me), that would have been unlawful, as the VP's role under Article II and the 12th Amendment is ministerial. Thus, in principle, mandamus would then be available against Pence. But can anyone say with confidence that in such circumstances the Supreme Court would have allowed a federal district judge to order Pence to accept the unlawfully rejected certificates? If not, how can we be confident that SCOTUS would allow such an order in the 2027 House scenario?

-- Michael C. Dorf

Trump and Robert Moses (Guest Post by Professor Martin Siegel)

2026-08-24T07:35:40.718-04:00

Much has been written about how Donald Trump learned hardball tactics and power politics at the feet of his father, the developer whose company’s claimed refusal to rent to Black applicants prompted a federal civil rights suit, and Roy Cohn, who schooled Trump in the art of never admitting defeat while personally savaging and countersuing opponents.

But when I read about the latest, absurd round of litigation over the White House ballroom, I didn’t think of Trump père or the infamous Cohn – I thought of Robert Moses.

In his legendary biography of New York’s master builder, The Power Broker, Robert Caro details Moses’s repeatedly successful strategy of outbuilding preliminary injunctions, court dates, and judicial scoldings. In the 1920s, Moses ran riot condemning private property wanted for Jones Beach and other Long Island parks and roads while his outraged opponents racked up court orders. No matter the losses in court, Moses still won. As trial dates loomed, he took frivolous appeals and instructed state lawyers to delay until his antagonists’ money ran out or his political allies rescued him or both.

Later, when Moses wanted to blast a parkway up the Hudson River and decided to bulldoze through the mostly untouched wilderness of Inwood Park despite an alternate route that would have saved the forest, opponents thought they’d halted or at least stalled the destruction by obtaining hearing dates in the city’s powerful Board of Estimate. But then Moses simply cut the trees down while the hearing he’d agreed to was pending.

As Caro writes, “once you did something physically, it was very hard for even a judge to undo it.” That pattern repeated itself for decades as Moses wielded near absolute power to remake New York City.

None of this was lost on Donald Trump, though Moses’s stature was shrinking by the time Trump graduated college and joined his father’s world of New York real estate. In a 1985 piece on the new generation of rising power brokers, the Times said, “if Mr. Moses were to be born again, he’d probably return as Mr. Trump.”

“Trump did want to be identified with him,” Caro commented for a 2018 article:

For a time, I used to hear… ‘Donald Trump is the next Robert Moses.’… But I always felt he himself was behind people saying that, if you know what I mean – that he wanted to be the next Robert Moses. And that’s really a terribly revealing thing. Moses, he didn’t let people stand in his way. He targeted – he not only evicted all these people… he hounded them out like cattle…. To admire him is to say a lot about yourself.

When it comes to the ballroom, Trump, like Moses, keeps losing. Lower courts have found the construction to be illegal but for some reason keep granting stays pending appeal, allowing Trump to keep building despite injunctions putatively ordering him to stop. On Friday, Chief Justice Roberts did so again, staying the original district court injunction while the Court considers the case.

Trump has predictably taken full advantage of this weird and ineffectual naivete: crews of 250 people are working on the project 20 hours a day, seven days a week – a breakneck speed explicable only by a plan to create facts on the ground no court will feel comfortable dismantling.

Never mind that what began as a ballroom has transmuted into a bunker complex supposedly essential to presidential security, though somehow the other 44 men to fill the office managed to live without it. Of course, since the magic words “national security” have now been uttered, the administration claims that no one – least of all judges – can second-guess their decision.

And anyway, judicial consideration is pointless because freshly built realities have mooted all possible objections. “‘Quite frankly, if the building were tragically ordered to be taken down, or even altered, by the court,’” the Solicitor General’s brief warns, quoting an unspecified administration official, “‘there would be no way to do so.’” That’s in part due to the building material, described in the brief as “the hardest and strongest concrete there is, the type used in nuclear power plants… impermeable, and virtually impossible to deconstruct.”

And so as with almost all exercises of executive authority that incant “national security,” the Court will almost surely let Trump have his way, bringing this golden sealed aesthetic nightmare to fruition (not to worry, though, since the SG’s brief also quotes another unnamed official who assures us, “this building is already being adjudged to be one of the most beautiful of its kind, anywhere in the country”).

The ballroom is only the most physical embodiment of the administration’s largely successful strategy to outrun, ignore, transparently evade, and cleverly moot adverse judicial decisions. As the Associated Press reported in May, “district court judges have ruled the Republican administration was violating an order in at least 31 lawsuits over a wide range of issues, including cuts in federal funding, mass layoffs, deportations, and immigration practices.” Immigrants with pending cases or orders precluding removal are shipped abroad, whole federal departments are essentially shuttered through firings and reassignments of employees and duties, grants are terminated, congressionally mandated spending is withheld or reallocated. The judges in these cases have often accused administration officials or lawyers, not just of disobeying their orders, but also of misleading them.

Then there are the cases like the litigation over Trump’s tariffs where the administration acts under dubious legal authority, is sued, ultimately loses months or years later (though often implementing the policy in the meantime), and reinstates the policy or something very similar citing new but equally dubious grounds, starting the cycle all over again. At the current rate, if the latest tariffs are also voided, the administration will complete nearly its full four-year term presiding over an illegal trading system, leaving its successor to repay injured businesses.

In all, the administration’s great and novel genius has been to recognize that it can skip the kind of grandiose, Jacksonian declaration of defiance then-Senator Vance advocated on a podcast in 2021 (“and when the courts stop you, stand before the country like Andrew Jackson did and say: ‘The chief justice has made his ruling. Now let him enforce it’” (in fact, Jackson seems never to have said this)). Much easier to bob and weave and dissemble and delay.

Why does this work? Easy. Employees fired en masse have to get on with their lives and find new jobs. Cancelled grants lead researchers to terminate projects, close down labs, and leave the country. Wrongfully arrested immigrants give up and accept deportation to any better-than-Eswatini destination. People can’t always wait for legal vindication and the clock can’t be unwound, whatever the ultimate judicial decision. More than that, courts can hardly keep up with the administration’s firehose of lawbreaking, and there are no more nationwide injunctions anyway. In the meantime, the administration has accomplished its (often illegal) objectives.

As Adam Liptak highlighted last week, the new name for this strategy, coined by Daniel T. Deacon and Leah H. Litman, is “legalistic noncompliance.” But the strategy isn’t new at all – Robert Moses knew it well.

-- Martin Siegel

Debt Fear-Mongering Has Moved from Mockable to Dangerous

2026-08-21T16:07:29.905-04:00

The lead news story for most of the day at The New York Times on Wednesday was: "U.S. Debt Hits $40 Trillion as America’s Borrowing Binge Continues." Again, that was a news story, not an editorial. The US is on a borrowing binge, you see, and if we are to believe that The Times upholds its professed standards of journalistic objectivity, that is a factual and neutral statement.

I will not bury the lead/lede here. There is no reason to panic about the US debt situation. I will return to that conclusion in some detail below, but the key point up front is that there is nothing new in what The Times reported on Wednesday, other than the number $40 trillion itself, which Paul Krugman correctly described as "a number that is big and round, but otherwise has no special significance."

The last time The Times went back to the debt fear-mongering well (on May 9 of this year), I offered a prediction: "The next trillion in gross debt that the US will reach, by the way, is $39 trillion, and it will happen fairly soon. Look for another 'for the first time' Times headline."

I was referring there to two nearly identical headlines that The Times ran several months apart a few years ago: "U.S. National Debt Tops $31 Trillion for First Time," on October 24, 2022, and "U.S. National Debt Tops $33 Trillion for First Time," on September 18, 2023. Exactly one day after that latter piece ran, my Dorf on Law column was titled: ""Breaking News on the Federal Debt: 33 is a Bigger Number than Any Smaller Number!!" As I explained there, when we are describing a number that will always be rising (under good and bad circumstances alike), reaching a new high is an inevitability, not an event. "I'm forty years old for the first time!!" Stop the presses.

I should offer two semi-mea culpas here. First, I either underestimated or overestimated the debt panic-stokers at The Times by predicting that they would run another piece when gross federal debt reached $39 trillion. Unless I missed it, they kept their powder dry and waited to hype the bigger, rounder 4-0. My prediction was thus incorrect -- incorrect in a trivial sense, but still incorrect.

Second, The Times is not alone. The Guardian is not one of the news outlets that I would have expected to jump on an anti-government, contrived non-story. Even so, they dutifully put this article on top of their web page: "US gross national debt tops $40tn for first time." For the first time! Bingo!! Beyond the odd sense of validation that I felt upon reading that, however, it did make me think, "I kinda owe those annoying reporters and editors at The Times an apology. Turns out they're not the only simpletons."

After reflecting on it a bit further, however, I think that The Guardian's mindless myna-birding of the anti-debt mantra is in fact a further indictment of The Times. After all, most news sources at this point employ no staffers who have enough knowledge of economics to pretend to write something even as vacuous and ponderously self-serious as we see regularly in The Times. As in so much of modern news coverage, the agenda is set by The Times, and everyone else becomes mere stenographers.

Why am I so confident in saying this about The Guardian? One hint is that they compounded their error by adding a tag at the top of their headline with the words "Debt Ceiling." That is a major tell, because the debt ceiling has absolute nothing to do with this story. The Times story itself never mentioned the debt ceiling (or the equivalent term debt limit), which -- as anyone who has read pieces on this blog by Professor Dorf or me (or sometimes by the two of us writing together) even occasionally over the last fifteen years knows -- is a statute that is an entirely separate matter from measures of the federal debt or its economic consequences.

But if one knows nothing at all about fiscal policy and relies instead on "stuff I kinda remember seeing in the headlines," one stumbles blindly into completely avoidable errors like that one. Also amusingly, clicking on "Debt Ceiling" next to that headline takes us to a page with links to three Guardian articles. In addition to the "for the first time" article itself, one is about Michael Cohen's efforts to crawl back to Trump and ask for a pardon, and the other is about Japanese debt. Those editors are surely good at their jobs and know about a lot of things, but fiscal policy is clearly not one of them. Yet they happily veer out of their lane because The Times gives them permission to do so.

Even though there is nothing to see here, the rubbernecking by The Times and others becomes a problem in itself. I have written many times over the years about why US federal debt is not the big, scary thing that fiscal scolds try to make it out to be, but it is worth offering at least a brief review here. The usual move by the fear-mongers is to go heavy on frightening but empty descriptors like "grim" or "worrisome" (or "binge"), but they generally cannot deliver a decent story about why the debt is a problem that goes beyond saying something like this: "We're doomed by all this, but we've been lucky so far and have by God's grace been given one last opportunity to mend out irresponsible ways. Repent!"

Am I exaggerating? Hardly. I have written a few mixed-to-positive things about David French, a relatively recent addition to the editorial page at The Times, who fills a conservative slot at that paper but is not what I have pointedly described as a "conservative diversity hire." Even so, French yesterday revealed himself to be deeply shallow when it comes to his understanding of economics. (One example: "Unless I harm someone else, it’s not the government’s job to determine whether I’m virtuous enough to enjoy liberty, including economic liberty." Wow, now there is a clear guide for setting the rules of the economic game. "Economic liberty" means nothing without rules, so the idea that there is a no-government zone of freedom is as naive as it is useless.)

And when it comes to federal debt, French is exactly the kind of blank slate that debt fear-mongers love. Again, French has no apparent reason to know anything about economics, but like nearly everyone in his world, he knows that being a Very Serious Person means being sagely worried about government borrowing. Two months ago, for example, he wrote this:

I’m reminded of a vivid analogy from a different context. In 2021 Noah Smith, a popular and thoughtful economist, wrote about the problem of debt and deficits. We know that at some point the debt gets too high, but we don’t know when that point is. He said, we were walking down "an infinite corridor with an invisible pit." We know the pit is there, we just don’t know where it is. If we keep walking, we fall in.

It is true that Smith is an economist, and he is hardly alone in offering that kind of apocalyptic warning about borrowing. Less dramatically, I have written at various times that there must be a tipping point ... somewhere ... beyond which debt would become a real problem. There are two reasons, however, not to go where French-channeling-Smith goes. (1) I cannot think of any other matter of policy on which the default idea is: "We don't know where the line is, so we'll assume it's an inch in front of us," for the very good reason that we should always ask what we lose by recoiling in abject terror. But more importantly, (2) The pit is not invisible.

On that later point, what The Times always does in its anti-debt pieces is to spook people with the idea that there will be a financial panic (sometime soon or soon-ish) caused by excessive debt. Their articles then turn to the usual suspects, who predictably say, "We've been warning you, but now it's $40 trillion!! The markets will punish us any day now." Some of the more behind-covering types might add something a bit more like Smith, qualifying their statements with "Well, we're not sure that it'll be any day now, but it might be!"

But if the big fear is that the bond vigilantes are ready to make us pay for our sins, we would in fact be able to see evidence that something is afoot. On their own, rising interest rates are not proof of a coming Armageddon, because those rates can and do rise and fall as a matter of course without getting out of hand. There has to be some evidence that the bond markets are doing something abnormal in response to federal borrowing, and although columns like those in The Times can cause blips in confidence, even the most economically conservative finance bro is not going to ignore market realities.

Anticipating the $40-trillion screaming headlines that were on tap, Paul Krugman's column two days ago was titled: "What Are Bond Markets Telling Us?" with the sub-headline: "Rates are up, but don't panic."

He wrote: "Yes, high interest rates are troubling and the next administration shouldn’t emulate the blithe unconcern of the current White House. But there’s no evidence of a looming debt crisis." Why not? Krugman gets into the technical weeds a bit, but here is his reasoning: "[I]f markets were really worried about U.S. solvency and the potential for the government to inflate the debt away, this should be reflected in measures that track inflation. But there has been, in fact, very little change in the 'breakeven' inflation rate, a measure of long-term inflation expectations." He added: "Another indicator is the price of credit default swaps — insurance against a possible US default. These also haven’t moved much."

Interested readers can also look at Krugman's piece from yesterday, in which he adds pointedly:

[A]nyone who asserts that markets are missing an impending debt crisis should be asked to explain how, exactly, such a crisis might play out. Don’t wave your hands at the debt crises that struck Greece and other southern European nations around 2010, because our situation is very different: Unlike Greece, which is a member of the euro area, the U.S. economy runs on dollars and U.S. government debt is denominated in dollars.
That matters because it’s very hard to construct a scenario for a Greek-style debt crisis in a nation that borrows in its own currency. As far as I can tell — and I’ve studied the issue at length — there are no historical examples in which this happened. The detailed, wonkish logic of why we are not and have never been Greece is explained in a paper I presented at the IMF’s annual research conference some years ago.

"No historical examples." Although understated, Krugman's fundamental point there is crucial. We should not allow people to talk about "an invisible pit" if they cannot describe (to carry the metaphor forward a bit) how deep the pit might be, how slippery the pit's sides are supposed to be (which is relevant both to falling in and climbing out), whether there are monsters or pillows at the bottom, and other key matters. In his writing over the years, Kurgman has mocked people who shout: "We'll be just like Greece, Greece I tell you!" And for good reason.

On a final point, one might reasonably ask why the headline of this column is: "Debt Fear-Mongering Has Moved from Mockable to Dangerous." After all, I have engaged in a fair amount of mockery here, and I am obviously having fun with it. Even so, it is important to emphasize the political consequences of this insanity.

The sub-headline on The Times's piece reads: "President Trump’s promises to restore fiscal order and reduce the amount of America’s debt burden have been undercut by spending on the Iran war, tax cuts and tariff refunds." So the implication here is that people who do not like Donald Trump or his presidency should agree with the debt scare-mongers. His policies, after all, are adding to the debt, and the debt is falling-into-an-invisible-pit bad, right?

But this simply highlights the central point that I make whenever I write about the debt (which is often). This has gone from mockable to dangerous because it is even more obvious than it ever has been before that this will harm policy in the future. Here, I will quote from my anti-scare-monger Dorf on Law column in May:

To be very clear, I am not saying that debt is always good. As always, I am saying that it is not per se bad. One might imagine that I would have written that down somewhere. Oh right: Out of literally dozens of places where I have made that argument, two good recent examples are here and here.
In those articles and in so, so many others, I make the point that the way to push back against orthodox debt fear-mongering is not to feed it when it is politically convenient to do so. [T]he reason, as always, to oppose Trump/Republican policies is because they are bad on their own merits. They waste economic resources and get nothing for it. [I]t still would be terrible policy -- as a matter of economics, on top of everything else -- to increase Pentagon spending by 50 percent (to build "Trump battleships," for chrissakes), to give huge tax cuts to billionaires, or to waste money in every other way that Trump wastes money.
Those who want to criticize Trump and the Republicans have more than enough material to work with. There is no reason for anyone, and certainly not The New York Times, to make a big deal about an utterly meaningless statistical artifact.

To close on a possibly entertaining (but mordant) note, shortly after I saw Wednesday's Times headline, Professor Dorf forwarded the link to me, just in case I had missed it. I replied: "Eccchhhh. I was almost hoping that you hadn't seen that, but then I realized that I would've felt a grim duty to write about it anyway. The power of Christ compels me, or something like that," adding moments later, "[T]his is the path in life that I’ve set for myself."

The point is that there is nothing enjoyable about seeing the corporate media team up on a regular basis with anti-government conservatives to undermine American economic policy. But they will not stop, so giving up is not an option.

- Neil H. Buchanan

The E.J. Carroll Case as Anchoring Device

2026-08-20T07:00:00.000-04:00

In my various essays following the conclusion of the latest SCOTUS term earlier this summer, I emphasized a number of points to push back on the narrative that the Roberts Court was either delivering a mixed set of results to President Trump or, even less persuasively, that it was outright rebuking him. I won't rehash all of my reasons, which are summarized here. Instead, I'll emphasize the framing effect of the extreme positions the Trump administration takes.

But first, consider a story. A fool of a father needs to divide a cookie between his two children, Dawn and Don. Dawn says: "I want half the cookie. That's only fair." Don says: "I want the whole cookie." The father says: "Let's compromise. Don will get 3/4 of the cookie and Dawn will get 1/4." In case it's not obvious, the Trump administration is Don in this parable.

In the cookie story, it's obvious that the father is acting unfairly to Dawn, but in many circumstances in real life it's not so obvious. Thus, psychologists and self-styled negotiation experts point to the importance of anchoring and related cognitive biases. A big initial ask makes acquiescence to a smaller but still large ask seem more palatable.

In the last Supreme Court Term, Trump's assertion of essentially unlimited tariff authority under the IEEPA and the ability to revisit a landmark 19th century decision construing the 14th Amendment's Citizenship Clause are the equivalent of asking for the whole cookie. Before Trump came along, neither was a remotely plausible view of the law. And yet, in the Learning Resources case, he got three votes (Thomas, Alito, and Kavanaugh) for his brash assertion of tariff authority. In Trump v. Barbara, he got three votes for the legality of his position (Thomas, Alito, and Gorsuch) and another vote (Kavanaugh) for its constitutionality if he could get Congress to go along. He got uncomfortably close to a whole cookie.

The latest effort by Trump to shoot the moon was his petition for rehearing after the Supreme Court denied certiorari in the E. Jean Carroll civil case. As a reminder, that's the litigation in which a jury found that Trump defamed Carroll when he denied having sexually assaulted her. Trump's original cert petition purported to raise general legal questions regarding the federal rules of evidence. To wit:

(1) Whether Federal Rule of Evidence 415 overrides Rule 403’s requirement to balance the probative value of temporally remote propensity evidence against its prejudicial effect before such evidence can be admitted?; (2) Whether Federal Rule of Evidence 413(d) authorizes the admission of temporally remote propensity evidence that the defendant committed the “crime” of “sexual assault” when the alleged prior act did not constitute a crime or a sexual assault?; and (3) Whether Federal Rule of Evidence 404(b)(2) permits the admission of “modus operandi” or “corroboration” evidence of prior “bad acts” without establishing a non-propensity purpose of the evidence, such as identity, absence of mistake, or another enumerated exception in Rule 404(b)(2)?

Did you follow that? That's okay. You weren't supposed to. The real point of the cert petition was to assert: Witch hunt. Fake news. I appointed three of you. You owe me!

We know that there were no listed dissents from the denial of certiorari in the Carroll case. We don't know that there were no dissents. There could have been as many as three. Indeed, there is reason to think that at least one Justice was seriously considering casting a vote to grant cert and may have been working on colleagues because of how many times the Court delayed deciding whether to grant cert. The original cert petition was filed last November. The plaintiff's opposition to cert was filed in mid-January of this year. Trump filed his reply at the end of January. The case was then re-listed fifteen times before the Court finally denied cert at the end of June (just in time to get out of town).

Trump filed his petition for rehearing on July 6. His main argument for rehearing was that he was imminently filing a cert petition in a related case and the Court should consider them both together. But this was a ridiculous argument because Trump's lawyers had already alerted the Court to the related impending cert petition in early June, nearly two months before the Court denied cert. Petitions for rehearing are almost never granted and certainly not when they point to nothing new.

Thus, the news that the Court rejected Trump's rehearing petition on Monday of this week should not have been news at all. To the credit of the journalists who wrote stories about that rejection, most of the ones I came across noted that Trump's rehearing petition was always a long shot. In other words, they did not frame the story as the Justices going out of their way to reject a position taken by Trump.

Nonetheless, the Court’s rejection of Trump’s frivolous rehearing petition will fool a lot of people. By rejecting a Trump case--even one as clear-cut as the Carroll rehearing petition--the Court's conservatives give themselves breathing room with the low-information public to rule in Trump's favor in other cases that he also ought to but won't lose. Those could include his thus-far successful efforts to evade lower court rulings that his ~~East Wing Destruction~~ ballroom construction project is illegal. With each absolutely bonkers request from Trump that the Court denies, it becomes easier for it to rule in his favor based on his other not-quite-as-bonkers-but-still-very-bonkers positions.

It's almost as if the father in our allegory knows that a 3/4--1/4 split is grossly unfair but wants to favor his favorite child.

Cowardly Senators and the Specter of Political Violence

2026-08-19T12:02:22.967-04:00

One of the smaller dramas of recent weeks was the US Senate's confirmation of Todd Blanche as Attorney General of the United States (AG). I must emphasize that virtually no Trump-era stories are small by historical standards, meaning that "smaller"in the previous sentence should be understood in an even more relative sense than usual. It was a drama that provides some important lessons, however, especially in explaining the continued refusal of Republicans in political office to stand against the Trump regime.

It is unlikely that anyone reading this column needs to be reminded that Blanche was a truly terrible choice to be anywhere near the Department of Justice (DOJ). Even so, a few lowlights will set the appropriate context. The man who failed while defending Trump against felony charges in New York was rewarded with the runner-up job at DOJ, during which time he took the lead in derailing the Epstein investigation. His efforts there included meeting in prison with Epstein's partner in child sex trafficking, then having her moved to a cushy federal detention facility -- but only after she claimed that Trump had done nothing wrong. Even after doing all of that for his patron, Blanche later said that if Trump had not tapped him to replace Pam Bondi as AG, he would have said, "I love you, sir."

During his confirmation hearings, Blanche was put under pressure to meet with some of the survivors of Epstein's heinous crimes. It seems useful here to quote at length from a piece by Rachel Foster at The Contrarian:

For nine months, these women had repeatedly requested a meeting with Blanche and were ignored. Only after Sen. Thom Tillis (R-NC) made clear that Blanche’s confirmation depended on meeting with the survivors did Blanche scramble to arrange a hasty last-minute meeting. The survivors changed their travel plans and raced back to Capitol Hill after two exhausting days of advocacy meetings and Senate hearings. Their attorneys received so little notice that they barely had time to join by Zoom, much less prepare for what should have been a thoughtful and productive conversation.
Instead, the meeting became another chapter in a three-decade pattern of institutional failure.
Rather than listening, Blanche interrupted survivors, argued over tone and semantics, minimized decades of Justice Department failures and betrayal, and condescendingly dismissed the legitimate anger of women who have spent 30 years trying to be heard by the government institutions charged with protecting them. He offered no credible plan to investigate or prosecute anyone beyond Jeffrey Epstein and Ghislaine Maxwell. He instead, to the shock of everyone in the room, suggested they start over by filing reports with the FBI – reports that survivors had been filing since 1996. In doing so, he effectively admitted he had not even reviewed the Epstein files before meeting with the very women whose abuse those files document.

I think it is fair to describe that as not good. Moreover, Blanche is terrible on every other issue, including saying that he is on board with Trump's efforts to federalize elections: "Election integrity is something that President Trump ran on, and the American people elected him. [T]he Department of Justice is trying to investigate issues around elections to make sure they’re fair and make sure they’re conducted the right way." Beyond the old "Trump said X during the campaign, and he won, so there are no limits on what we can do" move, what Blanche is defending is an executive order to have states send "voter rolls, including voters’ names, dates of birth, residential addresses, state driver’s licenses and the last four digits of their Social Security numbers" to the federal government.

Trump said at a recent rally that he thinks Blanche has "a shot at being the greatest ever, if he remains tough and strong." Obviously, Blanche knows how to crack the incredibly complicated code behind those words. This past weekend, he made news by refusing to pledge to act independently of the White House, asserting absurdly that "no attorney general should ever pledge that." Why not? "[T]his narrative that’s mostly pushed by the left and pushed by the media that the president’s going to pull me aside and ask me to do something illegal is completely a false narrative, not true, will not happen and hasn’t happened."

"Tough and strong" indeed. And Blanche's promises that he has killed his own effort to create a "weaponization" slush fund to pay money to January 6 insurrectionists are hardly believable.

Given all of that, why did I begin this column by calling Blanche's confirmation one of the smaller dramas of the last few weeks? Is it because he falls into the category of people who are in the tank for Trump but who would have been replaced by someone just as bad?

In that vein, I have argued here on Dorf on Law that it is important to be careful not to place too much emphasis on the particular clown in the clownshow who happens to be onstage at any given moment. In a column less than two months into Trump's current term, for example, I argued that only Elon Musk and Robert F. Kennedy Jr. presented unique threats that any replacements would be hard-pressed to replicate.

With Musk stepping out of his White House role soon thereafter, RKF Jr remained as the lone unique baddie, but three months ago I followed up with a column adding Pete Hegseth to the hall of shame: "[W]e now know that Hegseth seems to have been the person who made the difference in pushing Trump into the invasion of Iran. ... 'Within the cabinet, Mr. Hegseth was the biggest proponent of a military campaign against Iran,' according to reporting in The Times."

Notably, however, I stipulated in that column that "I consider Blanche to have genuine potential (in the worst sense) here, but what he has done thus far seems to differ only in style from [Bondi]. Blanche does seem to have the desire to be a supervillain, but he is not there yet." I concluded: "So it is time for RFKJr to move over, because there is a new menace to society at the door. And while they are getting Hegseth settled, they should leave space for Blanche or some other current unknown to break into The Show."

In the three months since I wrote that column, it has become clear that Blanche is living down to the lowest of low expectations, such that he surely is now in the big leagues of uniquely harmful Trumpists. And given that he is in charge of one of the most powerful arms of government, how is that in any way a small thing, even in the current hellscape in which we live?

The answer is that this is not equivalent to replacing, say, Kristi Noem with Markwayne Mullin to run the racist immigration crackdown at DHS, or of replacing someone like Kash Patel as FBI Director if he were ever to be fired. (Does anyone think Trump would have a difficult time finding anyone who could do as much damage as Patel has done, if not more?) No, the simple answer is that Blanche was going to be replaced with Blanche.

Huh? During the very brief period a few weeks ago when some Republican senators were making grunting noises about not confirming Blanche, Trump said that he would respond by keeping Blanche in the AG's office by withdrawing his nomination and keeping him in his then-current status as Acting AG. That is, Blanche had already been wreaking havoc at DOJ for months, and blocking his nomination was not going to make that stop. Even if Blanche's badness would be as difficult to replicate as I am suggesting here that it might be, I can say with confidence that Todd Blanche is certainly every bit as bad as Todd Blanche.

None of which is to say that he should have been confirmed, of course. Senators who had the opportunity to say whether, in their considered judgment, Blanche should be confirmed as the not-merely-Acting Attorney General of the United States should have rejected him. "That burglar might be able to find a way to take your things no matter what you do" is no reason to say, "Well in that case, I'll just let him into my house and let him take anything he wants."

Even so, fifty Senate Republicans voted to confirm Blanche. Mitch McConnell would have been a yea as well (assuming he was and/or is alive), and even if it had been a tie, the VP's vote would have put Blanche in office.

In the block quote above, Senator Thom Tillis of North Carolina is identified as the man who insisted "that Blanche’s confirmation depended on meeting with the survivors." Blanche grudgingly did the bare minimum by sitting in a room with the women who were trafficked by Epstein when they were girls, then made matters worse by insulting and belittling them. How did Tillis vote? Yea, of course.

What about the other senators who indicated that they might not go along? John Cornyn of Texas and Bill Cassidy of Louisiana both fell in line in the end. Again, I will quote at length from a source, in this case a Politico report on the voting:

Cassidy’s decision was swayed by Blanche reaching a deal with Texas Sen. John Cornyn to nullify the payout fund for Trump allies — including Jan. 6 rioters pardoned by Trump — on Aug. 2. The fact that Cornyn, a former Texas attorney general, was “comfortable” with the deal was important to Cassidy, he said.
“What I’m told as regards to the Anti-Weaponization Fund, if you put it in the context of the political environment, the judicial environment, the process you would have to go back through in order to reinstate it, that effectively it’s dead,” Cassidy said to Margaret Brennan on CBS’s “Face the Nation.”
There were “a lot of positive things to say about Todd Blanche” and “stable leadership” was necessary for the DOJ to do its job, Cassidy said.
Cassidy said, however, that he almost voted against Blanche for continuing to grant protection to Trump and his family from IRS probes.
“That is wrong — and no American should be targeted by the law, but no American should be above the law. And that, frankly, almost weighed to vote ‘No.’”

Such profiles in courage! Given that Cornyn has been lauded as an "institutionalist," which apparently is supposed to mean that he cares about the US Senate as an essential and independently powerful part of our constitutional system, one might think that he would have balked at falling in line with whatever Trump wants. Indeed, when Cornyn lost his primary earlier this year to a Trump-backed walking scandal, Cornyn reportedly claimed that this had freed him to be his own man:

Now the Trump administration might find itself having to come to terms with Mr. Cornyn as he flexes new political freedom, joining a handful of other Senate Republicans not seeking re-election or defeated in primaries at Mr. Trump’s behest who now have added room to maneuver.
“I think it is going to be a pretty bumpy ride for the next seven months,” Mr. Cornyn said during a wide-ranging conversation in his Capitol office as he reflected on the tumultuous Texas election and his nearly quarter-century in Washington.
“It does give some of us a little more freedom, and certainly leverage,” he said, before invoking Mr. Trump’s notoriously heated Oval Office meeting with President Volodymyr Zelensky of Ukraine last year. “As the president told President Zelensky when he was in his office a year or so ago — he said, ‘You don’t have any cards.’ Well, we’ve got some cards to play.”

One hopes that Cornyn's post-retirement plans do not include taking up poker, because he will soon be living on nothing but the Social Security benefits that he spent his career trying to cut. And who else is included in the "some of us" that Cornyn mentioned? None other than Tillis and Cassidy, who are also leaving the Senate.

Notably, one of the two Republicans who voted against Blanche's confirmation was Lisa Murkowski of Alaska, who said last year that "we are all afraid," referring to other Senate Republicans when it comes to crossing Trump, adding: "I’m oftentimes very anxious myself about using my voice, because retaliation is real." The news coverage at the time tended to assume that she meant political retaliation, but it seemed obvious that the fear she vaguely described had something to do with more than political lifespans.

And now we have three men who are leaving the Senate because of Trump, men who no longer fear for their political survival, yet these dead men walking could not even stand up and make the easiest call in the world. What makes them still so afraid? What other explanations remain?

- Neil H. Buchanan

Courting Voter Confusion in Alaska?

2026-08-18T12:36:13.112-04:00

In today's Senate primary election, Alaska voters will have many choices, including two named Dan Sullivan. One is the incumbent Republican. The other is a retired schoolteacher from Petersburg, Alaska with the same name. Republicans claim that the man I'll call Teacher Dan is running for the sole (or at least main) purpose of siphoning votes off from the incumbent and thus potentially handing victory to the Democratic challenger in a tight race. That's a plausible allegation given the jungle primary format. The top four finishers in today's primary advance to the general election. If two of those candidates are named Dan Sullivan, that could be enough to tip the outcome in favor of Democratic challenger and current House member Mary Peltola.

Is Teacher Dan in it only (or mostly) to siphon votes from Incumbent Dan? A NY Times story today reaches an uncertain verdict. Teacher Dan vociferously denies that he's running as a spoiler/siphoner, professing a desire to turn the Republican Party away from MAGAism and back towards its traditional norms and positions. However, the same story also indicates that Teacher Dan's views, as expressed through activism and donations, are pretty mainstream liberal Democratic. And given that there's no realistic possibility of anyone other than Peltola or Incumbent Dan winning the general, there is an obvious sense in which Teacher Dan and everyone other than Peltola and Incumbent Dan are running as spoilers.

Does it matter whether Teacher Dan's goal is to siphon votes from Incumbent Dan? From the perspective of voters, probably not. From their point of view, the question is simply whether they will be confused by two candidates named Dan Sullivan. However, so far as the law is concerned, motive might matter quite a bit.

Today's Alaska primary is not the first election in which multiple versions of the same name for two (or more) different candidates have appeared on the ballot. In some (indeed, probably in most or even all) such instances, it has been a result of dirty tricks by opponents. In recent memory, the most notorious example is the 2020 "Ghost Candidate" scandal in Florida. That instance of candidate name legerdemain resulted in a criminal conviction, as described in a 2024 news story:

Former Florida state Sen. Frank Artiles was sentenced . . . to 60 days in county jail for his central role in the 2020 "ghost candidate" election scandal. [He] was found guilty in September on three counts related to orchestrating the candidacy of Alex Rodriguez, who ran as a no-party candidate in Florida's District 37 Senate race. At trial, Prosecutors argued that Rodriguez, whose campaign was funded and managed by Artiles, was used to siphon votes from Democratic incumbent José Javier Rodriguez, ultimately helping Republican challenger Ileana Garcia secure a 32-vote victory in the tight race.

Some of the criminality in the Ghost Candidate case occurred during the investigation, but Artiles was also convicted of conspiracy. I haven't looked into Alaska law sufficiently to know whether Teacher Dan or one or more people backing his candidacy could be vulnerable to prosecution for some crime. So far as I know, no one backing Peltola put Teacher Dan up to what he's doing. Thus, even if Teacher Dan is trying to be a spoiler/siphoner, it's hard to argue that criminal liability ought to attach.

Whatever judgment one makes about the requisite intent of various actors for criminal liability, election officials would certainly be justified in taking extra steps to ensure that, in those elections in which there are same-name candidates, the ballot clearly indicates who's who. One would think that party affiliation ought to suffice. However, a jungle primary with four candidates advancing undercuts party affiliation as an identifier. If the general election ballot contains two Dan Sullivans, they will both be listed as Republicans. Accordingly, it strikes me that state law ought to permit additional identifiers to distinguish the candidates.

One of the culprits here is the jungle primary itself, which allows multiple candidates with the same name and same party affiliation to appear on the ballot. To be sure, even in states with conventional primaries, a same-name spoiler/siphoner could run as an independent. However, that will lead to less siphoning, as all but the lowest-information voters will be able to tell who's who from party affiliation. Unfortunately, there are a fair number of low-information voters.

In the end, I have considerable sympathy for the position taken by Incumbent Dan and the Alaska Republicans decrying Teacher Dan's candidacy. I have very little sympathy for those characters themselves, however, because while they are on the small-d democratic side of the same-name candidate issue, they are on the wrong side of every other issue affecting democracy. While they complain about Teacher Dan exploiting voter confusion with the quite possible aim of aiding Democrats, they heartily support aggressive racial and political gerrymandering, restrictions on voting by mail, voter ID laws, and other measures ostensibly justified as means of addressing (virtually nonexistent) voter fraud but undertaken for the actual purpose of gaining partisan advantage for Republicans.

-- Michael C. Dorf

Is the Insanely Early BigLaw Hiring Schedule a Real Collective Action Problem?

2026-08-17T07:39:19.422-04:00

My latest Verdict column discusses the news that the University of Michigan has adopted a policy (beginning in fall 2027) under which undergraduates' first-semester grades will be masked. And when I say the column discusses the news, I mean that literally. While I say a few words about the costs and benefits of the UM policy, I am mostly interested in the fact that it has garnered so much attention. Colleges and universities around the country have numerous policies regarding academic matters such as grades. In any given year, some of them change. Why was this change national news? The answer, I suggest, is that it fits a pre-existing narrative about the place of universities (especially elite ones) within the culture war.

In the course of describing the new policy, I note that its main purpose is to ease some of the anxiety that new college students feel, which is more acute now than in the past because of an overall increase in anxiety and other mental health challenges faced by the current generation of adolescents and young adults. I also briefly draw a comparison to the situation facing new law students as a result of a law firm hiring schedule that has become insanely front-loaded in the last couple of years. In the balance of this essay, I'll elaborate that development, discuss some potential fixes that have been proposed, and then tentatively float one of my own.

For decades now, law students who are interested in working for a major law firm have been able to obtain entry-level associate offers chiefly by working at such a firm for the summer after their second year of law school, doing a reasonably good job, and then getting and accepting an offer to come work for that firm on a full-time basis after graduating from law school (or after a judicial clerkship following graduation). When I was a law student in the late 1980s, the summer associate hiring process occurred mostly in the fall of the second year of law school. Firms would send teams of interviewers to law schools (or to satellite locations) for screening interviews and then invite those students who passed the screeners to visit the firm. The process was typically completed by the end of the first semester of the second year of law school or a bit later.

With some minor tweaks, that continued to be the process until very recently. One of the minor tweaks was to move the screening interviews to the end of the summer before second year, but that didn't really affect anything, because it still meant that firms were making post-2L-summer-associate offers based on two semesters of grades (from the first and second semesters of the first year).

The process began to change in 2018, when the National Association of Law Placement eliminated its timing guidelines. It changed even more dramatically since the COVID-19 pandemic, when screening interviews and many callback interviews began to be conducted via Zoom. No longer tied to the law school screening processes, firms conducted interviews on their own schedule. They then leapfrogged each other, starting the screening successively earlier and earlier to gain an advantage. As a result, the process now occurs mostly in the very first semester of law school. That's right. The law students beginning their legal studies over the coming weeks must contend not only with the challenges that have beset prior generations of students, plus the anxiety of whether AI will render useless the education for which they are paying a fortune, but also putting together materials to apply for what are for most of them their post-graduation jobs.

Indeed, students are understandably putting together their application materials for biglaw jobs even before law school begins. At Cornell, our admissions office now coordinates with our placement office to guide and assist entering students with job applications even before they arrive on campus. Similar support for what we call 0Ls is being offered at other law schools as well.

Nobody thinks the super-early start to the law firm hiring process is good for anyone. David Lat appropriately calls the new schedule a "lose-lose-lose" proposition. Professors Jeanne Fromer and Mark Lemley likewise decry the madness of the current situation. They offer different solutions to what everyone seems to agree is a collective action problem.

If the major law firms could all agree on something like the old system, everyone would be better off. The difficulty is that antitrust law forbids that kind of agreement among competitors. In addition, even if antitrust law did not forbid voluntary cooperation, the result would be a cartel, with the usual tendency of cartels to break down due to the gains available to defectors. The cartel solution to collective action problem has its own collective action problem.

The classic solution to a collective action problem is regulation with sanctions for defectors. Lat discusses two possible sources of such sanctions. One is a collective of law schools. The difficulty there is that the law schools themselves could be charged with collusion in violation of antitrust laws. Taking note of an open letter from student representatives at a variety of schools, Lat also suggests that the American Bar Association (ABA) could build into its accreditation standards for law schools restrictions on early recruiting. Given the negative impact of the current schedule on first-year learning, that does seem like a natural fit. The difficulty is that the ABA itself might then be deemed complicit in an antitrust violation. Moreover, as Lat notes, the Trump administration has the ABA in its sites as an unduly "woke" institution. Under the circumstances, the ABA is unlikely to take the risk of action subject to some legal doubt.

Fromer and Lemley have a proposal that would avoid the antitrust problem. There has long been a so-called state action exception to antitrust law. If the state itself favors cooperation or monopoly via regulation, that is not an antitrust violation. And, as Fromer and Lemley also note, the Supreme Court has already held that state bar rules promulgated by state courts count as antitrust-exempt state action. Thus, they propose that state high courts promulgate a rule requiring firms to hold open any offers they make for post-2L summer associate positions until at least October 1 of the 2L year. Doing so would mean that a firm that delayed its recruiting until the end of the summer after the first year of law school would be at no disadvantage relative to firms starting earlier. Thus, presumably, all firms would delay in this way so that they could obtain more information about the students they are screening.

I think the proposal of Fromer and Lemley could work, though, as they note, it depends on state high courts acting, and many might not, especially if the issue came to be seen through a partisan lens. That risk, they say, would be mitigated by actions of key state high courts, like those in California and New York.

I support the Fromer/Lemley proposal because it looks like it does not run afoul of the antitrust laws and holds the potential actually to respond to a collective action problem. But I wonder whether there is a real collective action problem here.

By that, I do not mean that we are not seeing what we are seeing. The timeline has been pushed forward, and I have no doubt that has happened because top law firms don't want to be left behind in the scramble to snatch up the best future lawyers. But I wonder whether some firms might do better (or at least as well) in the current regime by waiting. My suggestion is that, seen from the right perspective, there is no genuine collective action problem.

To see why that might be so, consider what a summer associate program is: Students who have just completed two years of law school are given some not-very-important assignments (because it would be irresponsible to give important work for clients to non-lawyers) subject to at-best uneven supervision (because it would be bad for the firm's bottom line for senior associates or partners to spend a lot of time supervising summer associates). In exchange, the summer associates are wined, dined, and shown a good time. I wrote about how this worked in a parodic April Fool's essay in 2012. Summer associate programs at the top firms aren't quite as lavish as they were before the 2008 financial crisis, but they are still perk-laden experiences geared at recruiting.

It shouldn't work on savvy students. Here's my reconstructed recollection of a joke I heard decades ago to illustrate why:

A man flatlines in a hospital operating room. To his chagrin, he finds himself falling and passes through the gates of hell. To his surprise, hell looks like a resort hotel. There are people lounging poolside, fancy restaurants, and all sorts of activities and creature comforts. Presiding over all of it is a smiling Satan in a t-shirt reading "Welcome to Hell: Aren't You Glad You Were Bad?" Suddenly, the man is rapidly rising and finds himself back in his body, alive. It was only a near-death experience. He resolves to live the rest of his life as an amoral libertine, reasoning that the worst that can happen is that he goes to hell, which would be great. He sins for the rest of his days. Eventually he dies for real and once again finds himself falling. He lands in a stinking wasteland that is unbearably hot and in which demons are tormenting the residents endlessly. He sees Satan, no longer smiling nor wearing that t-shirt. "Hey, Satan," he says. "What gives? I was here 20 years ago and it was nothing like this." Satan replies: "That was our summer associate program."

Unless they're incredibly naive, summer associates should not be persuaded by perks. Nor should they place as much value as they do on a job as a summer associate as a pathway to a full-time job. True, in good times, most summer associates get "permanent" offers, but I put those scare quotes there for a reason. Law firm associates are generally employees at will who can be fired for any reason (other than the limited ones proscribed by anti-discrimination law and similar bodies of law). Indeed, in bad times, law firms have been known to revoke "permanent" offers previously made to summer associates before they even show up for a day of work.

So, from the summer associate's perspective, the job is less than it is generally cracked up to be. To be sure, contrary to my claim above that the summer associates don't get very good assignments, the story linked a few paragraphs up says this:

The summer associate experience has historically been somewhat artificial, with many firms offering made-up tasks and discrete research assignments that bear only mild resemblance to actual responsibilities. However, the recession prompted an increased reliance on summers at many a cash-strapped firm, and offering 'real' work soon became not only a priority but a necessity across the profession.

Color me dubious because the obligations to clients and financial dynamics I mentioned above still apply. In any event, even if the summer associate work experience now is more genuine than pre-2008, that only makes it somewhat more valuable for the summer associates themselves. From the firm's perspective, a summer provides only very modest means to evaluate summer associates for full-time offers--and that's after the field has been cut down by choosing post-2L-year summer associates based on at most first-semester 1L performance. I'd bet that a firm could make at least as good, maybe better, hiring decisions if it had five semesters of grades, journal and paper-writing experience, performance in a law school clinic, and other indicia of legal acumen to evaluate before making offers.

And that leads me to my proposal. Some prominent biglaw firm could announce that it would shrink or eliminate its summer associate program and would henceforth fill most or all of each entering class of associates from a pool of 3L applicants who had spent their prior summer working somewhere else. As a sweetener, the firm could offer large bonuses to such applicants. (The money for these bonuses would come from the savings to the summer associate program). Interviews could be conducted two years later than they are now conducted but still with plenty of lead time. The pool would be expansive.

Accepting an offer from a law firm is not necessarily a contractual understanding, so 3Ls who accepted their offers from their post-2L summer employers would be able to renege and then apply for and take the competing offer. If the firm offering this later approach is prestigious, as I'm hypothesizing, there probably wouldn't be negative professional reputational consequences to students from summering for X, accepting X's offer, but then reneging and accepting Y's offer (and signing bonus). But if that proves to be an obstacle, firm X could conduct its interviewing and hiring just before or during the actual running of the competing firms' summer programs. That would still give X a much better sense of applicants' law school performance.

There is a model for what I'm describing. Before law firm hiring broke down, judicial clerkship hiring broke down in more or less the same way, with applications for some "off-plan" judges now occurring in the first year. Some savvy judges have found that they can get excellent law clerks simply by waiting. While their peers hire earlier and earlier, they actually prefer 3L applicants or applicants who are already out of law school. To my knowledge, judges who proceed this way are quite happy with the outcome.

So, if you are a lawyer with hiring responsibility at a prestigious Biglaw firm, and if you are frustrated by the maddening turn that the process has taken, I offer you, for free, an alternative: get out, or nearly out, of the summer associate program game entirely. And if no firm takes me up on my suggestion, I'll keep my fingers crossed that state high courts adopt the Fromer/Lemley proposal.

by Michael C. Dorf

Are the Lives of Public Officials More Valuable than the Lives of Others? (Thoughts Inspired by the Air Force One Ruse)

2026-08-14T07:00:00.000-04:00

Judge Irving Kaufman of the U.S. Court of Appeals for the Second Circuit was an infamous bosshole to his clerks. He frequently pitted them against each other, going so far as to designate one clerk as his favorite and assigning all work to that clerk, who would then be responsible for further divvying it up with co-clerks. But it was easy to fall out of favor with Judge Kaufman, leading the role of favorite--and with it the favored desk--to shift frequently based on the judge's whims. The job of a law clerk involves long hours but clerks rarely quit because a federal appellate clerkship is a plum job that opens doors for an entire career. Most judges have never had a clerk quit. Judge Kaufman's clerks quit on a regular basis. I learned about Judge Kaufman from the lore among Second Circuit clerks (including my late wife, Sherry Colb, who clerked for Judge Feinberg in 1993-94), but I have confirmed nearly all of what I heard from other published accounts, including Martin Siegel's 2023 book Judgment and Mercy.

My favorite Kaufman story, which I heard decades ago and a version of which Siegel also recounts, goes like this: One Saturday, Kaufman and his clerks were working in chambers when the phone rang. Because it was the weekend, Kaufman's secretary was not there, so Kaufman answered the phone himself. He listened for a few seconds, then hung up and, without saying a word to the clerks, put on his hat and coat and left the chambers. Some time later, Kaufman returned to chambers and, as he was hanging up his hat and coat, muttered under his breath: "Bomb threat."

I recount this story today for its obvious resonance with the recent revelation that the Secret Service used a ruse to spirit President Trump out of Turkey via a military plane while using the older version of Air Force One as a decoy--without telling the journalists or many of the White House staff left to fly on Air Force One that the president had surreptitiously left the plane or that the U.S. military and Secret Service were concerned that Iran or its proxies were trying to target the president's plane with a missile. Trump has stated that the Secret Service, not he, made the decision to have him fly in the military plane and use Air Force One as a decoy. That might be true, but he also implausibly claimed that, as the NY Times story just linked put it, "the plane that the public did not know he was on, rather than the plane carrying his staffers and Air Force One insignia, was the plane [the Iranians] were 'more likely to go for.'" And there's the fact that Trump constantly lies about everything.

Thus, it's quite possible that, like Kaufman with his law clerks, Trump decided to save himself and others be damned. That would be consistent with his character. Indeed, although not directly relevant to these incidents, I can't resist observing that Trump and Kaufman are bound together through Roy Cohn. Judge Kaufman is best known as the judge who sentenced Julius and Ethel Rosenberg to death. It eventually came out that this was no accident. Kaufman wanted to be the judge on the Rosenberg case and used his influence with Cohn to get assigned it (in contravention of the usual assignment system). Cohn would later take Donald Trump under his wing and teach him how to lie, cheat, and abuse power.

But I digress. What I want to ask now is whether there is or can be a justification for favoring the lives of presidents, judges, and some other public officials over those of the rest of us. My honest answer is yes, at least sometimes.

To be sure, there are a great many circumstances in which the lives of others should count equally. Judge Kaufman had no good reason to leave his law clerks exposed to the possibility of a bombing he himself sought to avoid because warning them would not have jeopardized his safety in any way. The Trump Air Force One ruse might be different. Journalists traveling with the president are sometimes informed of security measures but asked to keep them secret. If that was a possibility for the flight out of Turkey, the journalists should have at least been notified of the risk of traveling on Air Force One. But perhaps an exodus of journalists would have been a tipoff. And perhaps smuggling everyone onboard Air Force One onto the food cart in which Trump and a few aides exited was not practical either. It is thus possible that the only way to protect the president under the circumstances was to expose the journalists and unknowing White House staff to greater risk. (Apparently Marco Rubio knew of the danger and the ruse but not everyone on the plane did.)

So: Is there a reason to value the life of the president more highly than the lives of others?

By that question, I don't mean to ask whether there is a reason why greater security precautions should be taken to safeguard the president, judges, and other government officials than are taken to safeguard the rest of us. The president, Justices, judges, and some other government officials face greater risks from people eager and willing to engage in political violence. They need greater protection just to get them to the level of safety that most of the rest of us already have.

I'm asking now about providing greater protection for government officials even beyond what's needed to get them to the level of ordinary-person safety--or about protecting them in a zero-sum situation in which that means relatively endangering others. And the answer, it seems to me, is again, yes, at least to some extent.

Violence against anyone (except in justifiable self-defense or defense of others) should be prevented to the extent possible, but harm to government officials does damage beyond the harm to the individuals in their personal capacity. Whether such violence comes from foreign or domestic actors, it damages democracy (when elected officials are targeted) and the rule of law (when judges, prosecutors, and some other officials are targeted). Thus, in situations that really are zero-sum, the safety of a regular citizen can be given somewhat less weight than the safety of a president, a judge, or some other government official without implying that the life of the person who occupies the special role is any more valuable than the life of someone who does not. The sacrifice aims to prevent bad actors from subverting democracy or the law.

I hasten to add that the word "somewhat" does important work in the penultimate sentence of the previous paragraph. It is justifiable for Secret Service members to sprit the president away expeditiously during an assassination attempt, even as they are not taking the same measures to protect bystanders. It would not be justifiable for the Secret Service to turn bystanders into involuntary human shields or expose them to a grossly disproportionate risk. Not having seen the intelligence that led to the decision to divert Trump to the military plane and leave the unwitting journalists and White House staffers to ride the decoy, I cannot say whether the risk to which they were exposed was unjustifiable under the circumstances.

Finally, I am aware that there is bitter irony in what follows from my analysis. President Trump has already faced two assassination attempts. He is not wrong when he says that he faces threats constantly. However, through his grossly irresponsible statements and behavior (especially the J6 pardons), he has fostered an environment in which the actuality and threats of political violence have increased. That is not a reason why Trump should receive less protection than any other president would receive under similar circumstances. It is one of the many reasons to lament that he is president.

-- Michael C. Dorf