Dorf on Law

The Mifepristone Dissents by Justices Thomas and Alito Are a Hot Mess

2026-05-15T07:00:00.000-04:00

Yesterday, the Supreme Court issued a brief order extending its stay of the Fifth Circuit decision that invalidated FDA approval of the abortion pill mifepristone for prescription via telemedicine and delivery via the mail (or other courier). Some reporting indicated that the vote was 7-2. It probably was. We know that two Justices published dissents, but it’s the Court’s custom not to provide the vote on per curiam orders. Dissenters can, if they choose, say they are dissenting, but they don't always do so. So we know that Justices Thomas and Alito dissented because they wrote to tell us so, but we don’t know whether zero, one, or two other Justices also dissented.

We do know the reasons that Justices Thomas and Alito gave--and they are doozies.

Let's start with Justice Thomas. He writes that the makers of mifepristone are not entitled to seek relief from the Court because they are engaged in a "criminal enterprise." He claims that the notorious Comstock Act, enacted in 1873, bans sending abortion drugs through the mail. He's right that read literally and with no attention to the pre-enactment and long post-enactment history of the Act, it does seem to say that. But in light of the very substantial body of scholarship showing how reactionary and undemocratic it would be to read the Comstock Act as Justice Thomas would read it, the notion that the Comstock Act could justify overturning FDA approval of prescription-by-mail mifepristone through a drive-by decision on the shadow docket is astounding.

Readers interested in diving more deeply into the Comstock Act's history--which is inextricably intertwined with puritanical censorship--should read this article by Professors Reva Siegel and Mary Ziegler. I was invited to respond and did so in this article, which agrees with their analysis of the Act and offers some thoughts on its implications for constitutional questions.

In that article I fretted about what I saw as a "nonzero risk that the second Trump administration or a reactionary majority of the Supreme Court could deploy Comstock in bad faith" to ban abortion nationwide without a new Act of Congress. The fact that no one else--not even Justice Alito--joined Justice Thomas in relying on Comstock is encouraging, but it does not reduce the risk all the way to zero. The issue was not presented to the Court in Louisiana's brief. There is thus still some reason to worry that more Justices might join Thomas in relying on Comstock in a future case.

Before proceeding to Justice Alito's dissent, I should respond to a possible objection to my critique of Justice Thomas for saying what he did about Comstock on the shadow docket. The objection goes like this: Dorf, you're a freakin' hypocrite. If you think the shadow docket is an inappropriate way for the Court to make law, you should be criticizing the Court's majority for reversing the Fifth Circuit without a word of explanation.

That would be a fair criticism if here or elsewhere I had taken the position that the Supreme Court should never do anything without explanation. But neither I nor any sensible Court watcher takes that position. For example, I have no problem with the Court denying (or granting) certiorari without giving reasons. Nor do I think it problematic for the Court to stay lower court rulings without explanation when those rulings are obviously wrong. And, as I wrote here on the blog last week, the Fifth Circuit was obviously wrong in this case.

Most of my earlier essay on the case aimed to show that Louisiana lacked standing. Its alleged sovereign injury, once properly understood, amounts to a complaint that the federal government is under-enforcing federal law--which the Court has said does not confer standing. The state's alleged pocketbook injury is nonexistent because, as anybody who knows anything about health economics knows, abortion is cheaper than childbirth, and thanks to the Hyde Amendment, Louisiana's Medicaid funds don't even pay for abortion (via pill or otherwise) but do pay a whole lot for prenatal and delivery care.

Justice Alito's dissent aims to show that the mifepristone makers aren't injured by the Fifth Circuit ruling because the Trump administration will revert to the 2020-2023 policy of simply not enforcing the requirement of in-person visits to obtain the drug. This strikes me as highly dubious, partly because the administration could (under political pressure from its anti-abortion base) abandon that policy at any moment, but also because it's hard to see why either side is litigating this case so fiercely if nothing is really at stake.

Be that as it may, it is striking to see Justice Alito invent a reason why the mifepristone makers lack standing to contest an appeals court ruling that bars prescribers from sending their pills in the mail nationwide, while he completely ignores the objections to Louisiana's standing to sue the FDA.

That's not to say that Justice Alito completely ignores Louisiana's arguments with respect to standing. He clearly credits the state's sovereign interest, beginning his dissent by complaining about a blue-state "scheme to undermine" his precious ruling in Dobbs. By enacting laws shielding their providers against consequences in states that ban abortion, he says, states like New York are undercutting the ability of states like Louisiana to ban abortion. That would be a relevant point, I suppose, if Louisiana had sued New York, but Louisiana sued the FDA.

Meanwhile, speaking of hypocrisy, it's notable that neither Justice Thomas nor Justice Alito expressed any concern about the fact that the Fifth Circuit issued a nationwide injunction. It did so notwithstanding the Supreme Court's decision last year in Trump v. CASA holding that such injunctions generally aren't available. It got around that ruling by quoting the following language from CASA: "Nothing we say today resolves the distinct question whether the [Administrative Procedure Act] authorizes federal courts to vacate federal agency action." That's fair enough, so far as the CASA majority opinion goes, but Justice Alito, joined by Justice Thomas, wrote a separate concurrence in CASA expressing skepticism about loopholes that would allow nationwide injunctions by other names.

To be fair, Justice Alito has not specifically objected to using the APA's "set aside" language as a means of obtaining nationwide relief--but Justice Thomas has. He did so by joining Justice Gorsuch's concurrence in United States v. Texas. Thus, with respect to the scope of relief granted by the Fifth Circuit, Justice Thomas's silence is more problematic than Justice Alito's.

None of the foregoing should obscure the core issue. As the mifepristone makers note in their briefs and put into the district court record, the FDA relied on multiple studies evaluating outcomes for over 55,000 patients to conclude that dispensation without in-office visits is safe. Louisiana is raising bogus safety concerns as a pretext, when it is obvious that its real objection to mifepristone and indeed to all forms of abortion is that the state's lawmakers oppose abortion on moral grounds. In other settings, the Supreme Court has shown a disturbing tendency to allow states to dress their moral/religious/social views in the garb of concern for patient safety--most notably with respect to gender-affirming care for minors. That it has not allowed Louisiana to play the same game with respect to abortion pills, even if only for now, counts as good news.

-- Michael C. Dorf

Shouldn't Rich People Be Able to Afford Better Anti-Tax Arguments? (New York City edition)

2026-05-14T17:11:27.355-04:00

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

There is also this:

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

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

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

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

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

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

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

- Neil H. Buchanan

Priorities for a Project 2029

2026-05-13T08:16:57.021-04:00

My new Verdict column addresses the question of what can and should be done to mitigate the damage from the Supreme Court's further destruction of the Voting Rights Act (VRA) in Louisiana v. Callais. The column is aspirational in that it proposes federal legislation that could not be enacted unless and until Democrats hold a majority in both houses of Congress and there is a Democratic president. Even then, enacting such legislation would almost surely require ending the filibuster. In today's essay, I consider where such legislation should fit in a legislative agenda for 2029 or, in the event that Democrats don't control Congress and the presidency in 2029 but a constitutional republic still survives into the further future, 2033, 2037, or whenever.

The column discusses two bills that passed the House but died in the Senate during the Biden administration. One, the John R. Lewis Voting Rights Advancement Act (JRLVRAA), would amend the VRA. Because it strengthens mechanisms of the VRA that six Justices think are unconstitutional race discrimination, it would appear to be a non-starter unless coupled with some means of limiting or changing the Supreme Court. I'll say a bit more about Supreme Court reform in a Postscript below, but for now, I note that although enactment of the JRLVRAA would be an improvement over the status quo (if it were upheld), I think that both it and the other bill I discuss in the column--the For the People Act (FTPA)--are suboptimal relative to my preferred legislation.

The FTPA has some provisions I like, but in my column I focus on its requirement that states use independent redistricting commissions. This too would be much better than the status quo. Moreover, it would not cross any current SCOTUS red lines. But, as I explain in the column, my preference would be a federal statute that repeals the requirement of geographic House districts and replaces it with a federal requirement that states hold at-large elections based on party lists with proportional representation. That would solve both the political gerrymandering problem and promote representation of racial minorities without using any racial criteria (and thus not violate the current Court's limits on the use of race).

Once we are fantasizing about what a responsible Congress might do, we might as well come up with some priorities. Needless to say, I'm not the only person thinking along these lines. Googling "Project 2029" produces numerous websites (such as this, this, and this), each with its own set of priorities and policies. I do not mean to start another organization. Rather, I offer a few thoughts to whoever might be in a position to formulate and implement a reform program.

In the title of this essay, I've suggested that the key is to set priorities. However, one might think that the very notion of setting priorities runs counter to an effective Project 2029. A new president and Congress have a brief honeymoon period in which to act. Thus, the argument would go, they ought to cram as much of their agenda as possible into either a single piece of legislation (a really big really beautiful bill, if you will) or a raft of laws that they adopt in rapid succession.

I would indeed favor enacting as much of a liberal/progressive agenda as possible as soon as possible. But if, as I suspect, getting everything done all at once turns out to be an insuperable challenge, then one will have to prioritize. Picking priorities is difficult because there are so many problems. Here's a non-exhaustive list:

• Democracy deficits, including political gerrymandering, de facto racial gerrymandering, and voter suppression

• Environmental catastrophes, including but not limited to the climate crisis

• Use by the current administration of the organs of government to punish critics and other perceived enemies

• Corruption

• Overly restrictive immigration limits and oppressive immigration enforcement tactics

• Effectively unconstrained presidential power to use military force

• Widening gaps between the extremely wealthy and nearly everyone else (including affordability issues)

• Lack of health insurance/health care for millions

• Economic and social ills caused by social media, AI, and other transformative tech

• Empowerment of cranks and disregard for expertise both in government and government-funded projects (in universities and elsewhere)

• Reactionary judiciary

• Empowerment of racists, misogynists, anti-LGBTQ+ activists, and other bigots

• Gun violence

• Police violence

As I said, that's a partial list. No doubt each reader will think of multiple items I've omitted. I haven't included on the list one item that I think is vital: ending or at least severely curtailing animal agriculture. In addition to addressing the unnecessary suffering of billions of sentient beings annually, doing so could be an important part of the answer to multiple environmental issues as well as to promoting human health, but it's not currently politically realistic, even following a Democratic sweep.

Meanwhile, each item that does appear on my list could be expanded to include many very difficult sub-problems. I know because I've been spending some of my time over the last several months as a member of the steering committee of the Knight Institute's Reconstructing Free Expression initiative. It focuses on just one aspect of what ails us as a polity: the many ways in which our system of free expression has been weakened by a combination of market forces (such as the decline of advertising revenue for local journalism) and government attack (by the Trump administration). Thus far, we have had two convenings of scholars, lawyers, activists, and others to discuss the myriad problems and possible paths forward. Our aim is to produce actionable items, but it is a daunting task because, as quickly became apparent once each discussion began, the problems are many and complex. (My essay to accompany our first convening can be found here. The essay I wrote for the second convening will run tomorrow on the Knight Institute website; I will cross-post it on this blog on Friday.)

So, with so much to be done, how should priorities be set? I would suggest three criteria.

First, address those issues that, if not addressed or addressed badly, risk retrogression. At the top of the list would be all of the items that prevent the U.S. from functioning as a genuine democracy. Insofar as the goal is to make it harder for a future Trumpist or otherwise authoritarian movement to ascend to power again, one would want reforms to be entrenched, but respect for genuine democracy means that the political system must remain open. Thus, the democracy agenda must include reforms regarding not only matters like voting rights that are directly about democracy but also matters that foster democratic culture, including freedom of speech, a free press, and education.

Second, I would prioritize solutions that address multiple problems. As I noted above, greatly reducing animal product consumption is one such solution. There are many others. For example, limiting concentrations of wealth through collection of more taxes enables government to do more for people across a wide range of issues; it also makes the government more responsive to the needs of the people and less responsive to plutocrats.

Third, some problems are urgent simply because of their magnitude and the fact that the longer they go unaddressed, the worse they become. The climate crisis obviously falls into this category. The difficulty here is maintaining power long enough for investments in green energy to pay off. They will, but it is at least a little unsettling that much of the recent dip in Trump's (already-low) approval rating is due to higher gas prices. If gas prices stay high for the long term, that will be helpful for planetary survival. The disconnect between what's in everybody's long-term interest and what the people want puts enlightened leaders in the difficult position of having to . . . you know . . . dissemble . . . like by calling an important piece of environmental legislation the Inflation Reduction Act.

Postscript

Much of Project 2025 has been achieved through executive action without new legislation. I have framed Project 2029 as a legislative agenda for three main reasons. First, statutes are harder to reverse than executive policies. Second, there are some things that simply cannot be done without legislation. Third, even matters that can fairly be accomplished via executive action risk being invalidated by an aggressive Supreme Court that has, in recent years, developed multiple tools to invalidate executive actions it disfavors--especially the major questions doctrine and the overruling of Chevron deference in the Loper Bright case.

That brings me to my final point: If the Supreme Court proves to be an obstacle to an aggressive Project 2029 agenda even if adopted through legislation, some sort of Court reform might be necessary. The one reform that seems to have broad support--18-year term limits for Justices (which might not be possible without a constitutional amendment)--would take far too long to phase in for it to make a difference in the relevant time frame.

Two highly controversial reforms could have more immediate political payoffs. One would be to curtail the jurisdiction of the Supreme Court and other courts to invalidate or otherwise limit key legislation.

Under the orthodox view of Ex Parte McCardle, with the possible exception of habeas corpus, Congress has essentially unlimited power to limit the Supreme Court's jurisdiction. In the interest of full disclosure, however, I should add that I've never liked the orthodox view. I favor some variant of Henry Hart's view that Congress may not use Article III's Exceptions Clause to prevent the Supreme Court from fulfilling its essential role in the constitutional order. But I don't make the rules. It's possible that a majority of the Roberts Court would accept the orthodox view.

Possible but not guaranteed in advance. A Supreme Court decision invalidating jurisdiction stripping and then invalidating some important substantive provision of the Project 2029 legislative agenda might come a couple of years after enactment, at a point at which the composition of Congress might make it impossible to respond with Court expansion. Therefore, one might think that to mitigate that risk, one would need to include in the original package of legislation a measure expanding (or pejoratively, "packing") the Supreme Court.

Court expansion has the virtue of being almost certainly constitutional. The Constitution sets no limit on the size of the Supreme Court, which fluctuated from the Founding through Reconstruction. Congress rejected FDR's Court packing plan as a threat to judicial independence but without a serious argument that it was unconstitutional.

To be clear, however, I am not proposing Court expansion. I have no idea whether it would be tactically wise or necessary. I seriously doubt that it would be strategically wise, given the likelihood that once the Court packing genie is out of the bottle, a future Congress and president would expand the Court even further for the opposite ideological spin. I note only that the fact that Court packing is being given serious consideration is an indication of the degree to which our political/legal system is broken: if there is genuine doubt that constitutional democracy will survive to the next election, one considers options that could be dangerous in the long term on the theory that without them there will be no long term.

-- Michael C. Dorf

Reasoning With the Other Zealots While Under Attack

2026-05-12T13:26:00.002-04:00

Should professors reflect on their successes and failures, taking the proverbial hard look into a mirror to ask how we could do better? Of course we should. In fact, everyone should do that, no matter what kind of work they do -- or even if they do not engage in paid work at all. Being a decent human being involves self-doubt, commitment to doing better, and a fundamental humility that should always guide us, even when we are being brash or assertive. Too many people do not do that, however, and the world is seeing the kind of havoc a presidential administration staffed entirely by such people is capable of wreaking.

I focused on professors in my opening sentence, however, because my field is rife with people who are committed to telling the rest of us that we are being insufficiently introspective. In a column last week, "Reasoning With Zealots While Under Attack by Those Same Zealots," I responded to a particularly clever bit of misdirection of that genre, "Why Higher Ed Won’t Look Itself in the Mirror." The professor who authored that piece argued that "condescending dismissal is also a terrific way to avoid the hard questions about our own complicity in the degradation of the university," which bluntly asserts that we professors are not only stubborn snobs but are also therefore complicit in whatever it was that has led to the right's attacks on higher education in the US (and in other countries, to a lesser degree).

My column last week was something of a sequel to "Will Self-Criticism Save Colleges?' Is This a Joke?" which I published here on Dorf on Law on March 31 of this year. The fundamental argument motivating both columns is that the underlying decency that causes us to want to say, "To be fair, we know we're not perfect," is exactly the wrong response to people who are not looking for a way to reason with us but are instead looking for any weakness to attack, any opening to exploit, and any admission of guilt (or "complicity") to justify further attacks. As I put it last week, there are times when it makes no sense to ask: "What if we tried to reason with them?" This is such a time.

As the title of this column indicates, however, my story thus far has focused on only one group of unreasoning zealots who are trying to destroy academia. Those zealots are Republican politicians, who have been on the attack against academia forever.

For example, when Ronald Reagan was governor of California in the late 1960's, he responded to campus protests against the Vietnam War and the bombing of Cambodia by shutting down campuses across the state. Was this simply a public safety measure? Of course not? Was it a naked political maneuver, designed to appeal to "regular Americans" who hated long-haired hippies? Yes, but it was more than that.

As The Intercept reported a few years ago, a Reagan advisor spoke at a press conference (that is, an event at which he knew that he was going to be recorded) and said this in defense of Reagan's shutdown: "We are in danger of producing an educated proletariat. ... That's dynamite! We have to be selective on who we allow to go to college." That was hardly a one-off. After campaigning against "beatniks, radicals and filthy speech advocates" in 1966, Reagan in 1967 said that the state had "no business subsidizing intellectual curiosity."

I could go further back in history, but the point is that there is nothing new about the attacks by today's Republicans on higher education. They are the zealots to whom I referred in Tuesday's column, who continue to fear an educated proletariat and despise intellectual curiosity. But those Republicans have always had powerful partners, a group that today is known by the shorthand "right-wing billionaires" but which has been active since long before becoming a billionaire was even considered possible.

In a moment, I will describe a few illustrative examples of what those right-wing billionaires have been doing to higher ed in this country, but the threshold question is whether there is an opening for reasonable discussion between academia and those moneyed interests. That is, even though Republican politicians are wholly uninterested in anything that we might have to say, is this other group less zealous and more amenable to sincerely seeking a meeting of the minds? After all, the people with money are the ones who back the Republicans so lavishly that their wildly unpopular policies do not keep Republican politicians out of office, which suggests that if the billionaires called off the attack, their political minions would cease and desist.

To be clear, however, the record is hardly unambiguous regarding who is controlling whom. Early in the long, dreary history of debt ceiling confrontations, for example, I asked whether the money guys were the Dr. Frankenstein who had created a monster. After all, a constitutional crisis over US federal borrowing would be especially bad for people who rely on financial market stability, so one would think that the wealthy creators of the AstroTurf populism that became the Tea Party would have reined in their raging creation, if they could. Similarly, one would think that Wall Street and other super-wealthy types would be against tariffs (and certainly against erratic trade policy), yet the monster they backed in 2024 would never listen even if they tried to stop him.

As it happens, however, there is no reason to think that there is any distance between the money people behind the Republican Party and that party itself, especially when it comes to their disdain for universities. Again, one might be very tempted to think that financiers and other business people would want to keep the golden goose known as American higher education alive and thriving. Instead, they have always been scornful of one of the countries most valuable assets (which is a net exporter, by the way), because they know that they have never been able to control what people at universities do.

At least not fully. There have always been big pots of cash available for people who are willing to say what donors want to hear. As a notable example, the billionaire John Olin pushed hard (with notable success) to create a hard right academic movement called "law and economics," and he was so skeptical that academia might one day "capture" his movement that he directed his foundation to shut down within a generation after his death, lest academics who disagreed with him ever be funded.

And the wealthy assailants have only become more brazen. In an excellent guest column last Friday, Professor David Marcus of UCLA's law school set the record straight about an event at his school involving a Trump Administration official, after which "carefully selected video clips of moments from the hour began to circulate online. These misleading clips have gone viral, fueled in part by Trump Administration social media accounts. The event has become the latest skirmish in a relentless conservative campaign to discredit universities as bastions of illiberal wokeness."

Exactly. Later on Friday, I posted a short note pointing readers to a similar (and similarly contrived) event at Stanford Law three years ago, noting that I had written a series of columns dissecting that imagined assault on free speech on campus. (The fifth of my columns discussing that incident includes links to the previous four.) Because Stanford is a private university and UCLA is public, one might think that the two situations could be meaningfully different. Both are in California, however, where Republicans do not run the state legislature, which means that neither can be attacked via the direct routes taken in Florida, Texas, Indiana, and so many other red states.

Yet there are no worries for the reactionaries. They are backed by the billionaires who gave us the current Supreme Court majority, and they have a longstanding strategy to attack academia: goad students into reacting in exploitable ways by curating a list of approved speakers (and funding their travel and speaking fees), where said list is assembled with the unmistakable goal of sending out speakers who will be as provocative as possible. And as Professor Segall pointed out on this blog yesterday, Republican-appointed judges have dutifully amplified that distorted version of the UCLA story, which has been spread widely in the Murdoch-iverse.

I ask again: What if we tried to reason with them? Are the people who fund this coordinated attack on higher education interested in anything other than total victory? Of course not. As I discussed in a column two months ago, the people who whine that liberals have created a "monoculture" on campus are in fact not looking to create a multiculture. Indeed, we are not allowed to speak any more about diversity, equity, or inclusion. The people who scold "the campus left" for our supposed stubbornness would apparently have us ask those who relentlessly disparage us: "If we were to create a quota system to guarantee that x% of professors are conservative, would that be OK?" Answer: "Sure, if x = 100."

In that same column, I pointed out that the moneyed interests are similarly subverting universities by funding "civics centers," which are a particularly transparent form of propaganda and are based on an incoherent idea to boot. They are openly partisan to the point where conservatives are fighting ideological battles among themselves. And those same donors are now pushing into accreditation, trying to take over the levers that would allow them to directly punish universities that do not toe their preferred line. Would it help to reason with the people who used their power to get the President of Harvard fired?

The point is that the attack on higher education is not being carried out by people who have a good-faith argument that could be met with a similarly good-faith effort to find common ground. The politicians who are carrying this out in red states and in the federal government are not looking for compromise, and the billionaires who are trying to take control of the rest of academia are no less single-minded. Pretending otherwise only makes things worse.

- Neil H. Buchanan

The Dishonorable Judge James C. Ho

2026-05-11T07:00:00.000-04:00

On Friday, Professor David Marcus penned a guest blog here about the recent dust-up at UCLA Law School concerning a Federalist Society event featuring James Percival, the General Counsel for the United States Department of Homeland Security. This incident has been blown way out of proportion by the usual suspects, so I urge readers to read Professor Marcus's post and watch the video.

Speaking of out of proportion, Fifth Circuit Judge James Ho, a former law clerk for Justice Thomas, flew, in his own words, "halfway around the country," to moderate a Federalist Society event talking about free speech on campus. Judge Ho did not play the role as disinterested moderator and said his peace during the panel. He then allowed Professor Josh Blackman to reprint his remarks over at the Volokh Conspiracy. Judge Ho's inflammatory, partisan, and paranoid reactions to the UCLA incident reveal a lot about him and our current judicial politics.

He began by saying that the "recent incident at UCLA Law School should alarm every lawyer, every judge, every citizen who cares about the future—and the future leadership—of our country." Professor Marcus and I agree that the event was not perfect, with some students acting badly (especially by letting cell phones buzz during the event), but overall the speaker easily got his message across and was able to say what he wanted to say. I do not think "every lawyer, every judge, every citizen who cares about the future—and the future leadership—of our country," need be "alarmed" by what transpired during the event. Judge Ho's hyperbolic response, however, is a different matter:

Let me be clear: I didn't fly halfway across the country because some law school event went poorly. At the end of the day, I really don't care about what happens at UCLA. That doesn't affect me at all.

Here's my concern: If this is what we're teaching the next generation of lawyers and leaders—that this is how you treat people you disagree with—ask yourself: What else are they willing to do to those they disagree with? What other lines are they willing to cross? What kind of country does that look like? And is it the kind of country any of us would like to live in? Because what happens on campus doesn't stay on campus.

No one at UCLA or any other law school is "teaching" students to be rude during campus events. Please remember, Mr. Percival said what he wanted to say, albeit with background noise that was likely annoying. What exactly does Judge Ho want UCLA to do? Punish the students who did not remain totally silent during the event? How should those with the power to punish distinguish between normal background muttering allowed at all events from a true heckler's veto? Those lines are difficult to draw for the best-intentioned administrators. Moreover, as Professor Marcus recounted, the Federalist Society event was billed as one that would include a freestyle Q&A but then only pre-screened questions were allowed. Judge Ho makes no mention of that bait and switch.

What "other lines are they willing to cross?" I don't know but maybe Judge Ho should worry more about the examples being set by his favored Administration using the entire coercive power of the federal government to pressure universities, law firms, and television networks who criticize the President (who appointed Judge Ho) more than the localized free speech implications of a mild dust-up at UCLA.

Judge Ho goes on:

Students are learning all the wrong lessons. They're bringing those lessons to workplaces and communities all across America. And it's tearing our country apart.
But even that's not what most infuriates me about recent events at UCLA. What most infuriates me is that my branch of government has no interest in doing anything about it.... Four years ago, a similar incident occurred at Yale Law School. A group of woke law students disrupted an event that, ironically, was intended to promote free speech—simply because one of the speakers was a prominent Evangelical Christian lawyer. So I announced that I could no longer in good conscience hire law clerks from Yale Law School. I pointed out that many judges would obviously refuse to hire from a racist law school.
So if it's okay to stand up against racism, why not for freedom of speech?

Judge Ho's boycott of Yale students because the school possibly mishandled a student event was an overeaction and, even worse, an obvious publicity stunt. Why did Judge Ho have to go public instead of simply not hiring Yale clerks?

Judge Ho eventually extended his boycott to Columbia University for reasons that had the charm of somehow being both obscure and petty (a neat trick). That move led that notorious leftist who has no regard for free speech Eugene Volokh to write the following:

We shouldn't threaten innocent neutrals as a means of influencing the culpable. Columbia students aren't the ones who set Columbia policy. They may disagree with that policy, or they may not know enough about the subject to have a view... They shouldn't be held responsible for what Columbia does, and they shouldn't be retaliated against as a means of trying to pressure Columbia to change.

Moreover, there is a difference between administrators and faculty trying to draw hard lines at controversial campus events regarding student reactions and the fight against racism. There are no overtly racist law schools as far as I can tell but there are hundreds of universities wrestling with the balance between the free speech rights of audiences and the rights of controversial speakers.

Also, please don't miss the reference to "woke" law students that Judge Ho used to inflame the culture wars. Judge Ho expressed regret that only a few other judges joined his boycott and observed that "those who have written extensively about wokeism and intolerance—folks like Vivek Ramaswamy and Ilya Shapiro and Senator Ted Cruz—have all come out in strong support of the boycott." Yes, those three people should be the role models for spreading tolerance and civility throughout the land. I will spare the reader the many inflammatory, attention seeking, and left-wing baiting comments all three of those men have made throughout their careers, many of which denigrated and/or marginalized women, other minority groups, and anyone they feel deserves the undefined label "woke," whatever that means.

Judge Ho then had the temerity to say this:

Here's my problem. Just last year, when the Heritage Foundation was charged with antisemitism, a number of judges made clear that they would refuse to associate with the Heritage Foundation. And they specifically boycotted an event that would have featured the Heritage Foundation's work. There was even a whole panel of judges to talk about these issues during the most recent Federalist Society convention.
So just to review the bidding: It's okay to boycott Heritage. But you can't boycott woke law schools. Let's just be very honest about what's going on here. Let's be candid about the double standards that plague the judiciary. It's okay to boycott Heritage, because you'll never be punished for attacking conservatives. It's okay to boycott Heritage, because it's okay to virtue signal to cultural elites. It's okay to boycott Heritage, because judges who punch left are excoriated—but judges who punch right are celebrated.

Let me clean up the record. First, Professor Blackman along with many others resigned from Heritage because of its alleged anti-semetic behavior. Second, when the head of an organization calls for a return to "patriarchy," maybe judges should think about not participating in their events. Third, what is a "woke" law school? Judge Ho never tells us nor tries to defend this obvious dog whistle. Fourth, let's all feel sorry for those poor, poor conservative judges with life tenure and cushy jobs who punch left and are then "excoriated." This victim mentality is as absurd as it is pitiful.

Finally, Judge Ho says, and as Dave Barry would write, I am not making this up, the following:

We should heed the words of Justice Thomas: North is still north. Right is still right. Even if you stand by yourself. We need judges to follow in the mold of Justice Thomas—judges who are willing to stand alone when necessary—judges who care more about principle than prestige. It's unfortunate what happened at UCLA Law School. And it's unfortunate that the judiciary won't do anything to help.

Judge Ho says we need more judges like Justice Thomas "who care more about principle than prestige." The most important principle Justice Thomas stands for is that in litigation before the Supreme Court the GOP always wins. And to say that Justice Thomas, who accepted from a billionaire luxury trips, salary supplements for his wife, private school tuition for his son, and money to make improvements to his mother's house, cares more about principle than prestige is as disingenuous as it is partisan. And that is Judge Ho in a nutshell, disingenuous and partisan--not to mention a continuing embarrassment to the federal judiciary.

-- Eric Segall

What, You Thought the NYT Would Stop Fear-Mongering About Government Debt?

2026-05-09T17:03:00.006-04:00

If you are one of the people who makes important decisions at The New York Times -- a newspaper whose publisher actually had the nerve to write in 2024 that he has "no interest in wading into politics" -- you make sure that you wade into politics whenever possible, and the more you can do it from the right, the better. You also pretend not to be doing what you are clearly doing. My most recent primal scream about this NYT verity was "We're Doing Horse-Race Political Analysis? Now?! Really?!!" published on February 27 of this year.

And if there is one policy area in which Times editors cannot resist mucking around in political issues, it is economics. They often, for example, push anti-progressive-tax narratives, as I will discuss in a column in the next week or so. Their go-to move, however, is to partner with "deficit scold" organizations to push a narrative about the evils of public borrowing. Hence, the lead story on that paper's website two days ago was: "As U.S. Debt Hits a Worrying Milestone, Washington Barely Notices."

Again, with the war on Iran still a complete disaster, with millions of people fearing for their freedom in a country where the Supreme Court has somehow decided that looking non-White or speaking with an accent can be used to justify a "Kavanaugh stop" -- to say nothing of extrajudicial killings at sea, sexual predation against women in even worse ways than one might have thought possible, and on and on -- The Times decided that its most prominent story would be a pompous mess about the national debt. Even more ridiculous, by its own reporting, the story is kinda/sorta not news: "Washington barely notices," right? So the news hook is that something happened, but only The Times and some well-funded anti-government groups noticed it, and that is newsworthy. Got it.

But what is that something that happened and that would have gone unnoticed if not for the brave reporting by The Times? The entire story is drenched in cynicism, which I will explain in detail below. Before getting there, however it is important first to explain why this kind of cynical manipulation matters.

I have recently had occasion to mention an independent media outlet in Florida called Tropic Press, which is run by J.C. Bruce, who is one of the many people who should be enjoying mid-to-late career success in American journalism but instead have to navigate the hollowing out of the press in this country. Bruce is providing an important service to the public. Even so, he knows only the conventional wisdom when it comes to many things (which is true of all of us). Of relevance here, in a piece last week describing a Trump rally at The Villages near Orlando, Bruce included this:

So, how is the economy really doing?
Substack columnist John Ellis reports today that the national debt now exceeds 100 percent of our gross national [sic] product.
Said in the simplest terms, we now have more total indebtedness as a nation than we generate in revenue every year. This is a worrisome milestone because we haven’t been in this much red ink since the end of World War II.
The numbers:
We owe $31.265 trillion.
Each year, we make $31.216 trillion.
Meaning our accumulated debt is now more than 100 percent of our income.
As Ellis notes:
The government is spending $1.33 for every dollar it collects in revenue, and the budget deficit this year is projected at $1.9 trillion. That is little changed from 2025 as Republicans’ tax cuts kick in before their spending cuts take effect.
You can thank Trump’s budget bill for that. But, hey, billionaires need their yachts.

Sorry to be blunt, but this is simply stupid. Again, I will explain why momentarily. My immediate point, however, is that someone whose politics (based on everything that I have seen on Tropic Press) would never line up with fiscal orthodoxy bought this line of nonsense hook, line, and sinker. Note that the closest he comes to an argument on the substance -- that is, not merely saying "Gee whiz, look at them big numbers!" -- is that this is "worrisome" because this is the most "red ink" since the end of WWII. But so what? There are a lot of things that are now higher or lower than they were on X date in the past. Why is that a cause for worry? No explanation needed, apparently.

To be clear, I am being rather mean to Bruce here (which might say something about my mood today), but he is merely the latest in a long line of people who have absolutely no clue what these numbers mean, but they know -- just know -- that borrowing is bad. Saying so makes him think that he sound serious. Very serious, even. One might even call this an attempt to gain stature by talking like a Very Serious Person. Indeed, Paul Krugman has for years rightly mocked VSP's (Very Serious People). By coincidence, he published this short piece railing about VSP's in The Times fifteen years to the day before this week's "... Washington Barely Notices" nonsense.

Which brings us back to explaining why that Times article, which is a polemic presented not as an op-ed but dressed up as a serious factual news item, is truly nonsense.

Some readers might recall that The Times until recently had a duo of economics reporters who had been assigned to the "stoke fears about national debt" beat, and who as part of that crusade ended up publishing two nearly identical items (the latter sole-authored): "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. I responded multiple times, most notably with this: "Breaking News on the Federal Debt: 33 is a Bigger Number than Any Smaller Number!!"

Anyone with too much time on their hands might want to dive into my other responses, all of which are linked in that last column linked above. My point here, however, is not (yet) about how vacuous the fear-mongering is but rather about the deep cynicism underlying this whole line of Times coverage of US government debt. Notice that the more recent of those two NYT headlines included the claim that the "national debt tops $33 trillion," and that piece was published more than two and a half years ago. Yet the latest Times piece -- written by a new guy who seems to have been given the "scare people with big numbers" gig -- includes the same number that Bruce reported: $31.625 trillion. That is, just to be clear, less than $33 trillion. Did debt go down?

No, because the debt that is now being reported is "net" federal debt, whereas the numbers that were reported in the 2022 and 2023 pieces were "gross" federal debt. In my many, many columns over the years in which I have vented about mis-reporting on federal debt, I have often pointed out that the net number in fact reflects how much the federal government owes at any given time, whereas the gross number is by construction larger. (The details are too tedious for this column.)

But if that is my preference, why am I not applauding when mainstream scolds are finally at the very least using the "right" number? Moreover, because I always remind people that debt numbers can only begin to make sense when expressed as a ratio with national income in the denominator, why am I not ecstatic here? After all, the new guy at The Times did two things right, did he not?

Color me unimpressed, because it was only by using the net number and expressing it as a percentage of GDP that it was possible to make this non-story seem to have any legs at all. That is, whereas the previous guys would dutifully write a piece whenever their sources told them that we were going to hit a new trillion level, doing it this way gives us a new thing that we should supposedly decry. 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. But being able to say that we crossed the 100 percent barrier? Priceless. Here is the opening:

The U.S. government learned last week that it may have reached an unfortunate milestone: The size of its debt surpassed the nation’s total economic output.
It was a striking imbalance, according to early estimates, one that the country has experienced only in rare circumstances — briefly during the pandemic, and in the aftermath of World War II. ...
As a result, the ratio of debt to G.D.P. — a widely regarded metric for assessing the government’s fiscal health — slightly exceeded 100 percent in the committee’s calculations. That last occurred for a short period in 2020, as the pandemic clobbered the economy and government shelled out trillions in emergency relief.

The problem is that there is absolutely nothing significant about a 100 percent ratio of debt to GDP. Being at 101 percent is not meaningfully different from 99 percent. Why not? Among other things, debt can only be measured as what is known as a "stock" variable, which means that it can be measured not as a rate over time but as a simple number at any point in time. GDP, however, is a "flow" variable, which can only be expressed by reference to the passage of time -- for example, that the US economy produced $31.21 trillion dollars over the course of a year. Thus, "We owe in total more money than the economy produces in a year" simply has no coherent economic significance.

As a rough analogy, a friend of mine happily learned recently that, at his current rate of spending, he will not even need to dip into the principal on his investments for the remainder of his life. But again, so what? As long as he never reaches zero while he is alive, he has nothing to worry about. Yet it seemed to him like a big deal that he will die with 100 percent of his current net worth untouched. What if his projections had told him that he would end up with "only" 80 percent? Or 300 percent? How would that matter to a person who knows that "you can't take it with you"?

The reason that I am unmoved by the new NYT guy's use of net debt and a ratio, therefore, is that he still uses it to make a non-point. Moreover, he then uses that non-point to make it seem as though he is reporting something frightening and significant -- and Washington barely notices!! How lurid is the language? Sometimes it is understated a bit: "an unfortunate milestone"; "a striking imbalance"; or "the latest warning sign about the government’s poor fiscal health."

But it does ramp up: "U.S. debt has soared in recent years"; "For economists, the fear is that these conditions are inching the United States toward a fiscal crisis"; or [quoting a guy at a deficit scold group] "at some point, you’re in this debt spiral. The only way to stop it is through some kind of big shock to the system." As a side note, the writer cannot even avoid simple but meaningful technical errors, including this: "If [US] debt continues to grow faster than the economy, he said, it will only become more expensive for the government to borrow money." But this story is not about the growth of debt but its level relative to another number. Debt-to-GDP would not have gone over 100 percent during the worst of COVID, for example, unless the denominator fell.

Never you mind. There is still time to scare some more people:

Representative Jodey Arrington, Republican of Texas and chairman of the House Budget Committee, described the new level of the nation’s debt as a “flashing red light” for the economy, but he acknowledged that both parties were responsible for “sleepwalking off of a cliff.”
“I think, unfortunately, too many people are used to these flashing red indicators that we have significant structural problems with America’s balance sheet,” he said.

Because The Times knows how to cover its bases, the reporter eventually includes this: "To be sure, economists and policymakers do not believe the U.S. government is staring down an imminent calamity." That, however, leads the 14th paragraph of the piece. And even while pretending to be fair and balanced, we get -- after nine more paragraphs of "reason to doubt [the US's] financial outlook" and drive-bys about credit ratings -- this:

Other countries, including Japan, Greece and Italy, report debt levels that outpace their annual output, according to data compiled by the International Monetary Fund. But those economies are not as large as that of the United States, nor do their currencies occupy the same, pivotal role as the dollar in the global financial order.

Why is the US economy's larger size a reason to be more worried? Why is the US dollar's pivotal role not a reason that we are less in danger of a fiscal crisis than, say, Greece? No explanation. It is all just bad, because even though it is important to stipulate that other countries (including Britain for most of its history, by the way) have been here, that is no reason not to listen to the scolds.

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. That is the strategic error in the quote above from J.C. Bruce, who dislikes Trump and therefore decides to become an anti-debt warrior. But the 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. If the debt-to-GDP ratio where currently, say, 13 percent, it 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.

- Neil H. Buchanan

Bonus Weekend Content on Dorf on Law Tomorrow

2026-05-08T16:57:00.005-04:00

Note to readers:

My second column of this week was supposed to run today, Friday the 8th. However, Professor David Marcus's guest column, "Meaningful Campus Engagement with Government Officials: A Response to UCLA’s Critics," which is an excellent and enlightening discussion of a recent event at UCLA Law, was the fifth column of the week, and I want to leave it as the most recent new essay on the blog for the rest of the day.

Tomorrow, in a very rare instance of new content appearing on Dorf on Law over a weekend, I will offer my planned column (addressing an entirely different subject).

I do feel the need to offer one small note regarding Professor Marcus's essay, in which he referred to another incident regarding student protesters at a different elite law school. He wrote: "Nothing like what has happened on other campuses, where speakers could not continue, happened at UCLA." The hot link in that sentence takes readers to a different professor's post about a controversy at Stanford in early 2023, where an event featuring a Fifth Circuit judge made national news.

For what it might be worth, I wrote five pieces about that incident, in the second of which I make the case that the Stanford situation has been wrongly portrayed as an example of lefty students bullying a poor, beleaguered right-wing speaker into silence. That is not what happened. (To be very clear, that is not how Professor Marcus described it, as the quote above demonstrates.)

I cannot know, of course, why Professor Marcus seemed to stipulate that the Stanford event was on the other side of a line that he (correctly) says was not crossed last month at UCLA. I can say that he might be understood as saying that even if one views the Stanford event as unacceptable, the UCLA event most definitely was not. At least, that is how I would read it.

In any event, I want to emphasize that nothing I have said here in any way detracts from the quality of Professor Marcus's piece. It is an important contribution to everyone's understanding of what in fact happened at UCLA.

- Neil H. Buchanan

Meaningful Campus Engagement with Government Officials: A Response to UCLA’s Critics (Guest Post By UCLA Law Professor David Marcus)

2026-05-07T18:32:36.317-04:00

On Tuesday, April 21, UCLA Law’s Federalist Society chapter hosted a lunchtime event with James Percival, general counsel at the U.S. Department of Homeland Security. Shortly after the event’s conclusion, carefully selected video clips of moments from the hour began to circulate online. These misleading clips have gone viral, fueled in part by Trump Administration social media accounts.

The event has become the latest skirmish in a relentless conservative campaign to discredit universities as bastions of illiberal wokeness. Critics of UCLA Law claim that our administration failed to protect a speaker from gross violations of free speech and civility, and that UCLA students are afraid to debate ideas.

I was there. What happened is not what you have heard.

What follows is a lengthy description of all I know about the April 21 event. I base the following on my observations as an attendee and on numerous conversations with colleagues and students over the ensuing days.

Some of what happened is open to interpretation. The audience struck me as raucous but nowhere near sufficiently disruptive to distract me from Mr. Percival’s presentation, one that enthralled me with its mendacity. I know others feel differently. These are matters of evaluation and ultimately opinion. I trust that those who perceived things differently can disagree with me in good faith.

But there are also facts that leave no room for disagreement. Two truths strike me as especially significant.

First, claims that UCLA Law’s administrators made no effort to enable Mr. Percival to appear and speak are simply false.

Second, claims that UCLA law students refused opportunities at the event to engage with Mr. Percival by asking him questions are simply false. Students were promised but ultimately denied a meaningful opportunity to pose questions to Mr. Percival.

UCLA’s critics have couched their critique in terms of free speech and civility. There is no little irony here. Comments on some critics’ social media posts have targeted my students with vile, racist insults – a deplorable result, and one predictable given today’s degraded politics.

But I accept that some of UCLA’s critics indeed care about free speech and civility as such, and not just as talking points in the service of a political cause. My account should prompt these critics to reconsider. The narrative should fit the facts, not the other way around.

The Background to the Event

I do not know when the Federalist Society decided to host the conversation with Mr. Percival. But word of the event, scheduled for April 21, apparently reached law school leadership on April 14 in the evening. They had less than a week to prepare.

Law school leadership had to ensure appropriate answers to a series of challenging questions on very short notice. Would Mr. Percival bring his own security? If so, would they be ICE agents? If ICE agents would accompany him, would they engage in immigration enforcement efforts while on campus? Or would Mr. Percival need UCLA to provide security? How long would Mr. Percival be on campus? Where would he visit? What sort of personnel would need to be on hand to manage dynamics in the room? And so on.

Administrators worked with students and campus officials over the next several days to get answers. Administrators confirmed that Mr. Percival would not be accompanied by ICE agents, and thus that his visit itself posed no immediate enforcement threat. Administrators consulted with the university on security arrangements. The university deemed Mr. Percival’s visit a “major event,” a classification that triggers resource-intensive management strategies devised explicitly to vindicate UCLA’s commitment to the free exchange of ideas amidst significant controversy.

UCLA’s major events policy requires an organization hosting a qualifying event to give the university a minimum of fifteen days’ notice. I do not know if the Federalist Society chapter provided this notice. The fact that law school leadership only learned of the event one week before suggests not. If that is right, the organization’s failure would have been reason, under content-neutral policies, to require the event’s cancellation. Several student organizations issued a joint statement requesting the event’s cancellation, albeit on other grounds.

Administrators declined to cancel Mr. Percival’s visit, consistent with UCLA policy committed to free speech and the robust exchange of ideas. Instead, they endeavored to ensure that his visit would proceed safely.

The Federalist Society’s Message to the Law School Before Mr. Percival’s Visit

On April 17, apparently in response to the student organizations’ advocacy, UCLA’s Federalist Society chapter released a statement framing Mr. Percival’s visit explicitly in terms of a principled commitment to free speech and government accountability. This statement is essential to a complete understanding of what eventually happened.

The statement proclaimed the Federalist Society’s intent to “stand by its decision to host General Counsel James Percival.” “The purpose of this event,” the statement continued, “is to provide our community with direct access to a senior federal official” (all bold is mine). “Legal questions surrounding DHS’s work . . . deserve serious engagement, not avoidance.” The event with Mr. Percival would not be a “rally or a political speech,” but a “moderated event,” with Mr. Percival “answering questions.” The statement continued: “the ability to engage directly with those in power, to ask hard questions, to challenge legal positions, and to hold officials accountable, is precisely what a legal education is for.”

The statement then made an important commitment to the UCLA Law community: “To those who disagree with Mr. Percival’s views, we extend a genuine invitation: come, ask your hardest questions, and make your case.”

Concerned students approached me before the event, seeking advice for how to engage with Mr. Percival. I offered guidance in line with the Federalist Society’s invitation, one whose statement of principle matches my own views on free speech on campus. I encouraged students to fill the hall and then, when given the chance, to pose hard, probing questions to Mr. Percival. I witnessed this sort of engagement at a campus gathering once before, and it proved very effective. A speaker with indefensible positions had crumbled in the face of respectful, but relentless, questioning by prepared and informed students. I described this episode and urged that students follow its example.

The Promise Rescinded

Those who had RSVPed to the event received an e-mail on April 21 at about 9:15 a.m., a time when many students were in class. It included the following line: “If you'd like to submit a question in advance, you can do so here.” (I had not RSVPed, so I did not receive the e-mail, but a colleague forwarded it to me.) This was the entirety of what the e-mail said about questions. The e-mail gave no hint that Mr. Percival would only answer pre-submitted questions, presumably ones he would screen and deem acceptable.

I arrived about ten minutes before the event’s scheduled start. The law school’s main hallway was jam-packed, with numerous security personnel, a long line of people waiting to get into the room, and many students who were evidently there to protest in one manner or another. Security personnel had informed students on the spot that they could not bring in posters, describing them as a security threat. After conversations with several law school faculty and staff, security personnel permitted students to bring in 8.5x11 inch pieces of paper.

The event proceeded in one of UCLA Law’s largest classrooms. I have taught there many times, and I do not use a microphone when I do so. But some of my colleagues do, as the hall is large. Speakers were amplified at an event for admitted students held in the same classroom a few days before Mr. Percival’s visit. But no microphones were available for Mr. Percival or any other participant.

The organizers announced at the start that there would be no question-and-answer session. Instead, the event’s interlocutor, a professor from Pepperdine, would pose only pre-submitted and pre-screened questions to Mr. Percival.

This change flatly contradicted the statement of principle – the “genuine invitation” to “ask your hardest questions” – that the Federalist Society had issued several days before. A student in attendance stood up and asked why the event would not proceed as advertised. The organizers reiterated the plan without further comment.

I do not know who made the change. Perhaps it was the Federalist Society chapter, on its own initiative, or perhaps Mr. Percival insisted upon it. Regardless, Mr. Percival deserves blame for the rescinded promise. He could have insisted anytime that the event proceed as advertised and planned. He could have said, “I am an open book. Ask me anything!” He could have reiterated the importance of official accountability in a democracy and honored that principle during the event. Mr. Percival did none of this. Reports claiming that “the event culminated in a question and answer session” are flatly wrong, unless one counts answering pre-submitted questions acceptable to Mr. Percival. I do not.

The Audience’s Reactions

Readers should watch the full video rather than curated clips posted by UCLA’s critics to draw their own conclusions about the degree of audience disruption. The beginning is rocky. But Mr. Percival and the event’s interlocutor quickly settled into a long and substantive conversation. They even bantered about the student reactions.

Of course, no video can capture the experience of having been there live. Here is how I experienced the hour.

An audience primed by the Federalist Society’s statement of principle to “hold officials accountable” proved raucous throughout the event. Students in attendance laughed loudly and booed. Individual audience members shouted objections to Mr. Percival’s lengthy and tedious answers to the questions that the event’s interlocutor posed.

To my mind, these reactions hardly merit a national social media dustup. Surely the U.S. Department of Justice has better things to do than concern itself with some booing, laughing, and interjections from audience members. Nothing like what has happened on other campuses, where speakers could not continue, happened at UCLA. Whatever one’s impression of the audience’s behavior, an insistence that Mr. Percival was “effectively silence[d]” is false. Nothing any audience member did or said kept me from hearing Mr. Percival –

● Misdescribe basic commandeering doctrine;

● Provide a lengthy and wholly inaccurate description of sanctuary jurisdictions and ICE’s attempt to disrupt them;

● Discuss the Trump Administration’s deportation “numbers” as if he were dissecting basketball players’ career statistics;

● Minimize due process;

● Blame “the Left” for the Trump Administration’s enforcement priorities and particularly its relentless pursuit of noncriminal targets; and

● Mischaracterize administrative warrants issued by field agents about to knock down someone’s door.

In short, I heard every word Mr. Percival uttered.

I appreciate that others in attendance had a different experience and that the audience’s behavior kept them from concentrating on Mr. Percival’s presentation. But it is simply true that Mr. Percival spoke, at length, and that only in brief instances did he have to pause to let the audience settle down. The claim that “chaos erupt[ed]” is only plausible if one’s bar for what counts as “chaos” is quite low.

The most objectionable behavior from the audience involved an effort to disrupt using cell phones. Phones kept pinging with the sort of sound that alerts or text messages make. For a while a cell phone alarm went off about every sixty seconds. I had never experienced this sort of tactic before, so I am not sure why UCLA law administrators should have anticipated it. Regardless, organizers did not ask audience members to silence their cell phones until about a half-hour into the event. Throughout Mr. Percival calmly pontificated, in an ordinary speaking voice.

UCLA Law has suffered relentless criticism for “utterly fail[ing]” to take action against disruptive students. This criticism entails two errors, one of fact and one regarding lines of responsibility. First, personnel in the room did act throughout the hour to quiet and even remove students. Security in the room was ample and included uniformed campus police officers. Campus personnel trained in and charged with administering UCLA’s time, place, and manner (“TPM”) rules were also present. The Dean of Students spent the hour in the back of the classroom, consulting with campus personnel as they intervened with students whose behavior was disruptive. I witnessed numerous quiet conversations with students in attendance. About a half-dozen students were either removed or left in anticipation of being asked to do so.

Second, critics misunderstand lines of responsibility for the management of major events. As mentioned, campus personnel administer TPM rules. In other words, these personnel, not UCLA law school staff or administrators, assess student behavior and determine when to intervene. Mr. Percival has praised the security personnel in the room, while excoriating “the administration” for failing to “maintain decorum.” This criticism is incoherent. Either campus personnel performed adequately or they should be blamed for their failures.

The Event’s Conclusion

About forty-five minutes into the event, the same student who had earlier asked about the promise to allow students to question Mr. Percival rose again, to ask again when students could act on the Federalist Society’s invitation. When the event’s interlocutor confirmed that Mr. Percival would answer no question other than the pre-screened ones, about 75% of the attendees got up and left. This process took about ninety seconds. As students left some shouted at Mr. Percival. The event paused, then resumed.

The event concluded with no questions posed by any audience member in attendance, false reports to the contrary notwithstanding. This turn of events was deeply disappointing. Following the Federalist Society’s invitation, I came prepared to ask “hard questions,” to try “to hold” Mr. Percival “accountable” for DHS’s record of lawbreaking. I had hoped to ask –

● What steps, specifically, Mr. Percival had taken to discipline the many DHS lawyers who had ignored court orders and had been threatened with contempt?

● What steps, specifically, he had taken to address the record number of deaths in ICE custody, to remediate any unconstitutional conditions of confinement?

● What steps, specifically, he had taken to ensure that ICE agents did not terminate people’s immigration protections unlawfully, in violation of the Constitution, the Administrative Procedure Act, and the Immigration and Nationality Act? And,

● What steps, if any, he had taken in response to the many statements by federal judges expressing outrage for his agency’s lawlessness?

Many of us at UCLA are horrified by DHS policy and conduct. We had hoped to hold Mr. Percival and his agency accountable in precisely the manner promised to us and in the manner that critics would seem to prefer. We had no genuine chance to do so.

Reflections

I struggle to understand what, exactly, UCLA’s critics would have had the administration do beyond the extensive efforts it and campus officials made, consistent with UCLA policy, to ensure that Mr. Percival had his platform. Surely a public event with a powerful government official can endure boos, cackles, laughs, and even shouted insults without being “hijacked.” Regardless, UCLA law administrators honored major events policy by requesting considerable security and other campus resources. These personnel were in the room in full force, and they had responsibility for ensuring appropriate decorum.

Is it critics’ demand that students who booed, cackled, laughed, or shouted the occasional insult be disciplined? On what grounds? I have yet to see a critic invoke a UCLA policy or California or federal law that would impose discipline for booing a lunchtime speaker.

On what basis should UCLA law discipline a student who held up a sign that said “Nazi,” or one that referred to ICE with an expletive? I have yet to see a critic invoke a UCLA policy or California or federal law that would impose discipline for these messages.

If a sign or any other conduct did violate campus policy or state or federal law, anyone in the room could have reported that violation to appropriate campus authorities. (Under UCLA policy, student discipline at UCLA is handled centrally, not by the law school.) I didn’t see every sign, so I have no idea whether any crossed boundaries. Nor do I know whether UCLA law administrators have taken any steps to engage campus disciplinary processes. But if administrators have reported disciplinary infractions, public disclosure of that fact would be entirely inappropriate. At a minimum, critics’ blithe confidence that the event has triggered no disciplinary investigation or process assumes facts not in evidence.

I do believe the use of cell phones to make noise during an event merits a response. The constant pinging of alerts was an effort at disruption, not expression. But no critic of whom I am aware has explained why law school administrators should have anticipated this strategy. I expect the law school to consider possible policy interventions going forward. But blame assigned to the law school for cell phone sounds demands powers of foresight that are unreasonable to expect.

I understand that some criticism of UCLA Law sounds more in concerns about civility, not enforceable policy. I very much agree that norms about speakers and engagement with them merit discussion at universities. The part of the event that saddens me was the students’ booing when a faculty colleague introduced the proceedings. I understood my colleague’s participation in the spirit in which he framed it, as embodying a commitment to the free exchange of ideas, however controversial and challenging, on a university campus. I do not believe that Mr. Percival, as an agent of a lawless, rights-violating government agency, deserved an entirely boo-free, cackle-free, and laugh-free hour. I do believe the audience should have extended my colleague more grace.

UCLA should have a conversation about appropriate civility norms. Norms, of course, would not trigger discipline when violated. Administrators could urge and admonish but not otherwise punish absent a policy violation. But perhaps norms, thoughtfully inculcated, could be powerful. In these polarized times, norms of engagement deserve discussion, debate, and ultimately elaboration.

Perhaps one such norm would indeed insist upon a quiet audience for certain types of speakers. I am not confident this norm would be right when the speaker is a powerful government official. In such instances, an expectation of quiet acquiescence strikes me as farfetched and possibly unwise. Must the audience sit silently when a powerful government official repeatedly misrepresents his agency’s conduct? Surely the right answer, as a matter of norms, is at least open to debate.

Regardless, civility is a two-way street. Mr. Percival’s refusal to answer audience questions gave students no meaningful opportunity to engage, period. If I or other law school personnel attempt to inculcate expectations of civility in the future, what credibility will we have? I did encourage students to pose probing and challenging questions in respectful but firm ways. But the last-minute switch to only those pre-submitted questions that Mr. Percival wanted to answer pulled the rug out from under the invitation to “ask your hardest questions” and hold him accountable. I wouldn’t blame students if they laugh when I offer similar guidance in the future.

Mr. Percival dishonored a democracy’s commitment to government accountability. He took advantage of extensive efforts by UCLA administrators, working under considerable pressure and time constraints, to protect his right to speak. He rewarded these efforts by playing the victim. So did his agency. Fair-minded critics genuinely concerned with the free exchange of ideas should leave my students and colleagues alone and turn their attention where it is due.

-- David Marcus, Professor of Law, UCLA Law School

The Trump Department of Education's Investigation of Smith College Qua Women's College is Baseless

2026-05-07T07:00:00.000-04:00

On Monday, the federal Department of Education (DOE) launched a Title IX investigation into Smith College for its practice of admitting transgender women and according them the same respect as other students. Smith is, famously, a women's college, having produced such notable alums as Sylvia Plath, Gloria Steinem, and Julia Child. (Full disclosure: my younger daughter is currently a senior at Smith, scheduled to receive her degree in just over a week.) The DOE press release says that the government is investigating Smith "for admitting biological men and granting them access to women-only spaces, including dormitories, bathrooms, locker rooms, and athletic teams." It includes the following statement by Assistant Secretary for Civil Rights Kimberly Richey: "An all-women’s college loses all meaning if it is admitting biological males . . . ." The term "biological males" is Trump-administration-speak for "trans women."

But here's the thing. Even if one accepts the Trump administration's transphobic view that sex means sex assigned at birth, it's not unlawful for a private college to admit only cisgender women and some relatively small number of "biological males." That's because Title IX doesn't provide a bespoke exception from the sex discrimination prohibition for admission to women's colleges. Rather, Title IX simply does not apply to admissions to private undergraduate colleges. Don't believe me? Here's the statutory text:

20 U.S.C. § 1681 - Sex
(a) Prohibition against discrimination; exceptions
No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance, except that:
(1) Classes of educational institutions subject to prohibition
in regard to admissions to educational institutions, this section shall apply only to institutions of vocational education, professional education, and graduate higher education, and to public institutions of undergraduate higher education;

You see? Admissions to Smith, as a private institution of undergraduate education, are not covered by Title IX. When the DOE says it is investigating Smith for "admitting biological males," it is broadcasting the fact that it is investigating conduct by Smith that cannot possibly be unlawful.

That same press release goes on to quote Ms. Richey as follows: "Allowing biological males into spaces designed for women raises serious concerns about privacy, fairness, and compliance under federal law. The Trump Administration will continue to uphold the law and fight to restore common sense."

So, in addition to its completely unauthorized investigation into Smith admissions, the Trump DOE is complaining that "males" are permitted in "women-only spaces, including dormitories, bathrooms, locker rooms, and athletic teams." That strikes me as a dubious theory on the facts as applied to Smith. I can report from personal experience that everybody, including men like yours truly, is permitted in the dormitory buildings (and individual student rooms by invitation) and the dormitory restrooms, which are coed (though there are private stalls and showers). Perhaps there are privacy issues with respect to locker rooms but they could surely be addressed cheaply through stalls and curtains, although I'm dubious they rise to the level of Title IX violations in the first place.

As for fairness, this is supposed to invoke competition for sports teams, but for its intercollegiate athletics, Smith is subject to the rules set by the NCAA, which (under pressure from the Trump administration) doesn't allow trans female athletes to compete. I would be surprised to learn that there are cisgender female athletes in club sports or intramural sports who feel unfairly deprived of athletic opportunities because of the presence of a few recreational trans athletes.

Meanwhile, it's notable that in Bostock v. Clayton County, the Supreme Court, in an opinion authored by Justice Gorsuch and joined by Chief Justice Roberts, held that discrimination based on transgender status is unlawful sex discrimination pursuant to Title VII. It's possible that there are reasons to distinguish Title VII from Title IX, but the Trump administration's view is completely upside down: It has been bullying colleges and universities to adopt its position that statutory language that in Title VII forbids transgender status discrimination requires such discrimination under Title IX. That bullying has been quite successful so far, most prominently with the capitulation by the University of Pennsylvania. But the success of the bullying does not show that the Trump administration's extremely tendentious view of Title IX is correct any more than the fact that shop owners pay protection money to mafioso shows the latter's demands are lawful.

In any event, even if we indulge the Trump administration's extravagant view that concerns about privacy and fairness mean that failure to discriminate against transgender females is itself sex discrimination under Title IX, that has nothing to do with Smith's status as a women's college. Unless the government has some reason to believe that cisgender female students at Smith are being subject to especially severe intrusions into their privacy or special unfairness in club or intramural athletics, there is no more reason to subject Smith to this particular anti-trans crusade than there is to target any other single-sex or co-ed college in America.

So why did the administration target Smith College in particular? I can't say for sure. Ms. Richey appears to be a general-purpose anti-trans zealot, but her public profile doesn't reveal any prior connection to Smith. If I had to speculate, I'd say that Smith was targeted not because the presence of trans students makes its cis students uncomfortable in any way but precisely for the opposite reason--that Smith and Northampton, Massachusetts present an especially welcoming environment for LGBTQ+ persons. Just as the administration targeted Penn, Harvard, Columbia, and other Ivy League universities to make the point that it could bloody the noses of even the best-resourced universities in the country, so it targets Smith to make the point that it can foist its transphobic policies on even one of the most trans-welcoming colleges. For the Trump regime, arbitrary bullying is a feature, not a bug.

-- Michael C. Dorf

The Fifth Circuit's Dubious Accounting Compounds Its Dubious Discussion of Precedent in the Latest Mifepristone Case

2026-05-06T07:00:00.000-04:00

On Friday of last week, the Fifth Circuit issued an order effectively banning "mail-order abortions" via mifepristone on a nationwide basis. Its ruling temporarily voided the FDA rule, formally adopted in 2023, that permits doctors to prescribe mifepristone via remote consultations, with the pills to follow in the mail. Readers will recall that two years ago the Supreme rejected a similar effort in FDA v. Alliance for Hippocratic Medicine. In that case, doctors who opposed abortion sought to challenge both the 2023 expanded access FDA rule and the original 2000 FDA approval of mifepristone. The Court found that such doctors, who did not themselves prescribe mifepristone, were asserting a too-speculative claim when they averred that they might have to treat patients who suffered complications from mifepristone. The doctors' group thus lacked standing.

The current case was brought by the state of Louisiana. According to the Fifth Circuit, the state has standing where the private doctors did not. The Supreme Court will likely soon weigh in via its emergency docket. On Monday, Justice Alito issued an administrative stay of the Fifth Circuit ruling, so that for now mifepristone is available via telemedicine and the mail. Yes, that Justice Alito. But don't lose your mind. Justice Alito delayed acting for 48 hours, apparently in contrast to stay applications he likes. And it's only an administrative stay to give the state time to respond. Its brief is due by tomorrow at 5 pm.

I suppose it's possible that the state brief could say something unexpectedly super-persuasive, but I expect its arguments to fail to adequately distinguish the Alliance for Hippocratic Medicine standing ruling. To see why, it's useful to disaggregate the two kinds of Article III injury that the Fifth Circuit validated.

According to the Fifth Circuit, Louisiana has a sovereign interest in enforcing its laws restricting abortion. FDA permission for doctors to prescribe mifepristone without an office visit and then to send it via the mail does indeed make it more difficult for the state to detect violations of its abortion restrictions than it would be if the FDA required office visits, as it formerly did. However, the fact that federal law once made it harder to get mifepristone than it does now does not mean that federal law imposes a sovereign injury on Louisiana. After all, the 2023 FDA rule does not affirmatively facilitate violation of Louisiana's abortion laws.

Imagine that there were no FDA. Then too, federal law would pose no obstacle to telemedicine prescription and mail delivery of mifepristone. But surely we wouldn't say in that circumstance that the federal government had done anything to undermine Louisiana's sovereign interest in enforcing its abortion restrictions. We do, of course, have an FDA, and pursuant to federal law, prescription medications are subject to various regulations. We can thus understand Louisiana to be arguing that by approving mifepristone for telemedicine and mail order, the FDA is not sufficiently enforcing the medication restrictions that it would otherwise impose.

Seeing the argument in this light, it's clear that Louisiana lacks standing because it is complaining that the federal government is under-enforcing federal law. But this argument pretty directly contradicts both Alliance for Hippocratic Medicine itself and California v. Texas, both of which generally deny standing to one who would complain that the government is under-enforcing federal law against a third party, regardless of whether the complainant is a private party or a state.

But wait. What if FDA approval of mifepristone pre-empts the application of state laws restricting abortion to its prescription? If that were so, then FDA approval (via mail or otherwise) of mifepristone would undercut the state's sovereign interest in enforcing its abortion restrictions. To my knowledge, however, there is no contention in this litigation that FDA approval pre-empts state regulation. I wish it did, but as I read the case law, FDA approval pre-empts state laws that restrict a medication's availability based on safety and effectiveness concerns (because that is what FDA approval is all about) but not state laws regulating the practice of medicine, including defining unethical practices (as Louisiana has deemed abortion).

Thus, the state's sovereign interest doesn't justify standing.

Neither does its economic interest. The Fifth Circuit ostensibly distinguished the pocketbook injury analysis from Alliance for Hippocratic Medicine by pointing to evidence in the Louisiana case that supposedly made this theory of injury much less speculative than the asserted pocketbook injury in Alliance for Hippocratic Medicine. The Fifth Circuit stated:

Louisiana identifies $92,000 it paid in Medicaid costs from two women who needed emergency care in 2025 from complications caused by out-of-state mifepristone. Such costs will almost certainly continue because nearly 1,000 women monthly—many of whom are on Medicaid—have mifepristone-induced abortions in Louisiana.

I made fairly conservative estimates based on available data that the cost to Medicaid of providing prenatal and delivery health care to 1,000 women in Louisiana is over $12 million. The rate of major complications from mifepristone is very low, and the cost of care associated with them is generally less than the $92,000 per two patients proposed by the state, but even taking the state's numbers at face value, the total costs the state will incur from mifepristone complications is two orders of magnitude less than it incurs from providing prenatal care through Medicaid. I've included only the costs of complications because, under the Hyde Amendment, Medicaid won't pay for the mifepristone and associated abortion care itself.

Readers might wonder whether the analysis changes if fewer than 1,000 women having mifepristone-induced abortions are on Medicaid. It would not. The key point is that for any given patient, the expected cost to Medicaid from complications due to mifepristone is much lower than the expected cost of prenatal and delivery care.

The upshot of all that should be obvious to anyone who can add and subtract: If more freely available mifepristone leads more Louisiana women on Medicaid to terminate their pregnancies than otherwise would, that will save the state money, not cost it money. There is a pocketbook benefit, not a pocketbook injury from FDA approval of telemedicine prescription and mail-order delivery of Mifepristone.

I recognize that "abortion saves the state money" is not necessarily a winning argument with the current Supreme Court. Perhaps that's why GenBioPro and Danco--mifepristone makers that bought the case to SCOTUS--do not include the point in their otherwise excellent respective briefs in support of a stay of the Fifth Circuit ruling. Nonetheless, the argument is sound. If a single action would impose costs and confer incommensurate benefits, then it might be fair for one affected by that action to say they're injured by the costs in a way that the conferral of benefits does not make up for. But that's not what's going on here. Louisiana is claiming a pocketbook injury as to which both costs and (much larger) benefits are calculated in dollars.

In the event that five Justices disagree with the foregoing and with the additional reasons not to find standing set forth in the applicants' briefs, they would still need to find a likelihood of success on the merits of the underlying challenge to the 2023 FDA action. The Fifth Circuit thought this was plain by relying on the vacated ruling in Alliance for Hippocratic Medicine and the fact that the Trump administration doesn't defend the current regime. The administration opposed the injunction on the ground that it's reviewing the rule for possible revisions. Its acquiescence in the contention that the 2023 process was flawed is based in anti-abortion ideology and the general disregard for science characteristic of federal regulation of all things medical under Trump and RFK Jr. That's why the defense of the current rule is up to a private company.

Even if the Supreme Court rules--as it should--that Louisiana lacks standing and/or that it lacks a good case on the merits, there remains a substantial risk that the current administration will rescind FDA approval for mifepristone via telemedicine and mail delivery. It might not do so until after the midterms, so as not to make abortion access a voting issue. That would be consistent with the low profile the Trump administration has taken in this litigation.

Whatever the timing, if the administration does rescind the 2023 approval, expect the litigation to continue in the form of a challenge to the rescission as arbitrary and capricious. In that litigation, there will be no doubt that makers of mifepristone will have standing and a strong case on the merits (because experience over the last several years reveals few risks from mifepristone via mail), but that is no guarantee of success, given the Justices' underlying views about abortion.

--Michael C. Dorf

Reasoning With Zealots While Under Attack by Those Same Zealots

2026-05-05T14:18:00.001-04:00

An old friend of mine had a go-to joke that made me laugh every time. Whenever we were watching a TV show or movie, or talking about a natural disaster, or reacting to news about an unprovoked attack by an animal or a person, my friend would say: "What if we tried to reason with them?" A flock of locusts descends on a town: "What if we tried to reason with them?" A series of tornadoes tears through the Midwest: "What if we tried to reason with them?" Rage zombies dismember and eat humans in a post-apocalyptic hellscape: "What if we tried to reason with them?"

In a December 2024 column, I referred to a vivid example of the naive idea that my friend was mocking:

The second movie in the "Mad Max" saga, the 1981 classic "The Road Warrior," includes a scene in which The Humungus, the leather-daddy leader of a murderous post-apocalyptic biker gang, makes an offer to a band of survivors who are holed up in a fortified oil refinery. He shouts: "Just walk away. Give me the pump, the oil, the gasoline, and the whole compound, and I'll spare your lives. Just walk away. I will give you safe passage in the Wasteland. Just walk away and there will be an end to the horror."
A terrified survivor says to her compatriots: "You heard what he said! It sounds reasonable! We don't have to die! All we have to do is walk away!" Everyone rolls their eyes, because obviously there would be an immediate slaughter of anyone who walked away.

More recently, though less colorfully, I described the tendency among "sober-minded" Democratic leaders as well as academic types (like me) to imagine that we can always reason with our opponents, if we could only take a "to be fair" approach to those who aim to destroy us. In "'Will Self-Criticism Save Colleges?' Is This a Joke?" on March 31 of this year, I asked rhetorically: "[W]hat happens when this 'to be fair' default goes meta? That is, what happens when academics say about academia, as the triangulators do about liberal Democrats, 'Well, it's true that we suck'? Do we see a meeting of the minds? No, we see a feeding frenzy on the right as they destroy the very people who hand them the tools to criticize academia."

Today, I return to this topic to address it from a different angle. Even if my argument in that March column were wrong, which would be to say that academics should generally be self-critical and give our opponents ammunition to use against us, there is still the question of whether there are times when an otherwise honorable strategy is a bad idea, for strategic reasons. That is, even if we could figure out a way to reason with the locusts, the tornadoes, the zombies, and The Humungus, might there be times when trying to have a good-faith conversation might not be the best use of our time and efforts?

I emphasize that I am in no way backing off of my arguments in that March column. As I will emphasize below, there truly is no "reasonable-ing" our way out of the current crisis, because the other side is not misinformed or confused but rather is fully aware of what it is doing. Even so, a recent column by a fellow academic caught my eye. It did so in the bad way that results in essays that get my attention being the focus of columns like this one, but it did have the surely unintended effect of making the anti-academia argument even weaker. And that is interesting.

In "Why Higher Ed Won’t Look Itself in the Mirror," published last month in The Chronicle of Higher Education (paywalled, unfortunately), a professor in Penn's Graduate School of Education argues that the problem with professors is that we are stubborn. Worse, we are snobs: "[C]ondescending dismissal is also a terrific way to avoid the hard questions about our own complicity in the degradation of the university." Indeed, the sub-headline relies on that dreaded accusation as well: "It’s easier to dismiss our critics with condescension than to reform."

I should say that the author of that piece, Professor Jonathan Zimmerman, was previously unfamiliar to me. That is not n slam (as in, "Who the heck has even heard of this guy?") but simply to say that we work in different fields and thus would be unlikely to run across one another. And his previous pieces for The Chronicle, including critiques of the capitulations by Columbia and Northwestern in the face of Trumpian threats, suggest that he is hardly a wingnut. This is in contrast to, say, the historian who is loudly leaving Harvard after 40 years (to move to the University of Florida, natch) while reportedly "alleg[ing] that efforts to diversify graduate programs and faculties had amounted to an 'unspoken protocol' that for years ensured that white men were systematically discriminated against." Oy. White grievance again.

Zimmerman is not that. Unfortunately, his recent column tries to make a virtue of a different kind of obliviousness. He begins by recounting an incident at an academic conference in which he asked (during a Q&A session) whether academics should look in the mirror and blame themselves and "wondered what those of us who work in higher education might have done — or not done — to bring about this awful moment." He says that no one answered his question, but someone did object to a metaphor that he had used at the end of his question (the kind of objection that right-wingers love to use while rolling their eyes about "PC culture"). Zimmerman then writes: "So the panel began with a diatribe about Donald Trump’s assault on free speech and it concluded with a warning to watch our words."

What? The complaints about Trump's attacks on free speech are not about watching our words. Trump and Republican governors are saying that no one can say things with which they disagree, and universities are indeed firing people for seeming not to hate, say, DEI and trans people as much as Trumpists want everyone to hate them. Saying to someone, "Hey, you used imagery that makes some people uncomfortable" in no way stops that person from saying what Zimmerman wanted to say. And even if what he wanted to say was deliberately meant to offend, being told that he has offended people does not infringe on his freedom of speech. "Your free speech offended some people here" is free speech.

So the column did not get off to a strong start, to say the least. But the substance of the author's claim is that there are a lot of things that are genuinely wrong with higher education. He is concerned because we have supposedly stopped teaching the virtues of democracy and seek only to vilify America ("[I]n some quarters the West itself was imagined as a source of oppression rather than liberation"), because we have de-emphasized teaching in favor of research, and because we are apparently no longer presenting both sides of every issue.

We then are served with this summarizing assertion: "Professors generally refuse to admit any of this, which compounds the problem. We are like little children who close their eyes in the hopes that nobody can see them." Again, what? Nothing in the paragraphs that went before that claim includes anything that academia writ large "refuse[s] to admit," and certainly no one imagines that no one else can see us. We have been having vigorous arguments about whether it is the job of academics to rah-rah so-called Western civilization forever. We go through waves of reform efforts to improve teaching. We debate whether, say, it is my job as a tax professor to assign readings by authors who claim against all evidence that tax cuts more than pay for themselves. Should biologists teach "intelligent design"? Should geologists be "open-minded" and assign texts asserting that the earth is 6000 years old?

Have those decades of debate solved the big problems? Of course not, because these are arguments about balancing, and there is always a way to argue that something is out of balance. I have strong opinions about some of those things, but the fact that I have not gotten my way does not mean that academics are refusing to look themselves in the mirror. It means that they did not see things the way I do, which is hardly a surprise. We professors are not pretending that the outside world cannot see us, but we are saying that those people (both inside and outside of academia) who pretend that these issues are easy to fix and therefore that disagreements are all in bad faith are selling simplistic nonsense.

Does that make us "condescending"? Well, what is the right way to say, "You know, what you're talking about here is a lot more complicated than you seem to think, and you're wrong to accuse others of stubbornly refusing to listen to you, because you're misdiagnosing the problem"? I suppose that one can say "I disagree with you" in a zillion different ways, with all kinds of tonal variations that run the gamut from sympathy to exasperation, but it is tendentious in the extreme to claim that academia is in trouble because professors stubbornly refuse to agree that they are complicit in the problems on which Zimmerman focuses.

Again, however, the larger point here is not whether academia is full of a bunch of stubborn, out-of-touch people who refuse to engage in self-reflection. I clearly think that such a characterization is nonsense -- even though I could write for days about the times when I have seen things that I wish we would change -- but the question that I promised to address earlier in this column is whether there is a time when self-criticism that would otherwise be sensible must be avoided.

That is, with the decades of attacks by Republicans on higher education having metastasized into what the Trumpists are now doing, what should we do? My column in March argued in essence that we should never hand the other side ammunition by saying that "we kinda suck, right?" That is not because there are no ways in which we do kinda suck (all institutions -- and people -- do), but because the response from those who are attacking us is not going to be, "Well, let's talk about that and reach a reasonable solution." It will be: "See, even they admit that they totally suck. Let's finish the job and get rid of all those losers."

Because of the nature of the people who attack higher education, I have no basis on which to believe that there would ever be a time when it would be wise to reason with them. People who are not interested in reason cannot be moved by reason. But if there were times when trying to do that might make sense, this is not it.

Consider, for example, the not-unreasonable complaints about university teaching. Zimmerman's argument is that the public at large lost faith in academia because we stopped caring (or perhaps never cared) about being good teachers. More than that, he suggests that from within the maelstrom of Trumpists' attacks on higher education, we should be trying to improve the quality of classroom teaching.

But why -- or, better yet, why in the world would we do that now? The idea is apparently that we can improve matters by making a genuine effort to address an issue that supposedly helps to explain the public's purported dislike for us. But that is worse than naive, because it presumes that if the public in general started to like the cut of our jib, we would suddenly rack up political wins. Hmmm. Iran war? Reproductive rights? Gun control? Ending ICE abuses? Childhood vaccines? The public in general has very made itself clear, on all of those issues, that it opposes by large margins the Republicans' positions. Yet no one even bothers to ask whether the next mass shooting will dislodge the ruling party from its highly unpopular position.

Back to Zimmerman, who notes that Trump went after science because of the money but then claims that "the big problem in higher education is not our scientific-research apparatus, which was the envy of the world before Trump took a sledgehammer to it. It is our abandonment of the ideal that propelled us to build up universities in the first place: the cultivation of citizens." Is that true? Which is actually two questions: (1) Is it true that we abandoned the ideal of the cultivation of citizens? and (2) Is it true that that is "the big problem" here?

The answer to (1) is only "yes" if one thinks that "cultivation of citizens" has a clear meaning, one favored by the people who get misty-eyed about teaching "American greatness." And the answer to (2) is not only "Hell no," but again, "Hell no, because fixing that problem would change nothing about what the American (and global) Right wants to do to higher education." The "big problem" is a concerted assault on higher education's very foundations, an assault that is funded and led by a moneyed class that does not like the suggestion that they might not deserve their privilege.

These are not people who are upset that college professors are not given adequate training to become excellent classroom teachers. They disagree with the very idea of the value of higher education. The hapless, habitual former presidential candidate Rick Santorum once responded to Barack Obama's call to make higher education available to all young Americans by sneering, "What a snob!" then adding that Obama wanted to "indoctrinate" people in "his image." Trump put Betsy DeVos in charge of the Education Department in his first term, then one-downed himself with Linda McMahon in his second. He and his supporters drive top talent out of the country and consider it a win.

What if we tried to reason with them?

- Neil H. Buchanan

Anatomy of the Murder of the Voting Rights Act

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

During the oral argument in Louisiana v. Callais, Justice Alito repeatedly described the Court's decision in Rucho v. Common Cause as holding that political gerrymandering is constitutionally permissible. For example, at page 12 of the oral argument transcript, he asked this question: "if incumbent protection is a permissible districting criteri[on], then, under Rucho, isn't seeking partisan advantage also an objective that a legislature may legitimately seek?" The "if" there isn't really conditional. It was clear during the argument that Justice Alito thought that both incumbent protection and seeking partisan advantage are legitimate districting goals pursuant to Rucho.

However, Rucho did not hold that political gerrymandering, incumbent protection, seeking partisan advantage, or anything else is constitutionally permissible. It held that challenges to political gerrymandering present nonjusticiable political questions and are thus committed to state legislatures in the first instance or Congress if it chooses to exercise its power under Article I, Section 4 to "make or alter" state laws concerning electoral districts.

I criticized Justice Alito's conflation of nonjusticiability with constitutionality after the Callais oral argument. He doubled down on that conflation in his opinion in Callais, now speaking for a six-Justice majority. To be sure, he started off well enough. He wrote that Rucho "held that claims of partisan gerrymandering are not justiciable in federal court." So far, so good. But then immediately, Justice Alito drew an unwarranted conclusion when he added that "[t]he upshot of Rucho was that, as far as federal law is concerned, a state legislature may use partisan advantage as a factor in redistricting."

The key bit of legerdemain there is the word "may," which, in the quoted sentence, means "legally may." But that's not right. To say that a state legislature can get away with an unconstitutional gerrymander because the courts won't stop it is not to say that when it does so it has acted legally. There's a difference between nonjusticiability and legality.

To see what that difference is, consider another nonjusticiable political question. In Nixon v. United States, the Court held that it would not entertain a challenge to a Senate judgment of impeachment. What counts as a Senate trial, the Court said, is up to the Senate. It's a fair inference from the Court's Nixon opinion that other kinds of questions involving impeachment are also nonjusticiable.

Suppose that the House impeached and the Senate removed a president based on the fact that the president wore a tan suit during a press conference. Nixon means that the president would have no recourse. However, that is not because wearing a tan suit qualifies as an impeachable offense. It's because the Senate would have had the last word on this particular question and would have given an answer that is final despite being wrong.

Admittedly, there is a certain legal realist perspective that rejects the distinction I am drawing here. It is best encapsulated by what Oliver Wendell Holmes, Jr. wrote in The Path of the Law: "The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law." But even if that's a useful maxim for advising amoral clients, it's not a true metaphysical proposition.

Consider another analogy. The Supreme Court has the final say on constitutionality (absent the very unlikely possibility of a constitutional amendment). We nonetheless speak of Supreme Court decisions as being "wrong" or "mistaken," and we are not speaking nonsense when we do. Even the Supreme Court itself often speaks this way when it overrules its prior decisions or says that Plessy [v. Ferguson] was wrong the day it was decided."

To be sure, in the tan suit case, one might think the dispute is entirely theoretical. Whether we say that the Senate was wrong but final or we say that there was no law because law is only what the courts enforce (as a then-college-student and a law professor once argued with respect to the tan suit issue) doesn't make a practical difference. However, that won't always be true. And it isn't true with respect to the interaction between political gerrymandering and the Voting Rights Act.

The main reason why the Rucho Court found political gerrymandering claims nonjusticiable was its conclusion that there were no "judicially discoverable and manageable standards" for saying how much consideration of politics in districting is too much. I disagreed with Rucho, but accepting it doesn't necessitate validating all uses of politics in districting. In particular, it doesn't validate subordinating racial equality to political gerrymandering. Yet that's what the Court did in Callais when it said that plaintiffs bringing a VRA challenge must show that the state rejected options for creating majority-minority districts if those options failed to satisfy the state's political goals, "including partisan advantage."

That requirement is doubly problematic. First, it doesn't follow from Rucho. One need not identify any standard for measuring how much politics is "too much" in order to say that a VRA plaintiff complaining that minority voters have had their voting strength undercut by race must present a map satisfying traditional distracting criteria such as compactness, contiguity, and preservation of political units but need not include in that map the state's political goals. One can assess whether VRA plaintiffs have satisfied their burden without taking account of politics at all. Thus, there's no occasion for a court to judge whether there was "too much" politics and therefore no contradiction of Rucho.

Second, Justice Alito and the Callais Court treat racially polarized voting as a kind of exogenous fact of nature, when it is quite clearly an endogenous feature of the racism of the contemporary Republican Party. In places where the VRA has proved most necessary, the modern Republican Party gained ascendancy over the last couple of generations as the fulfillment of President Nixon's Southern Strategy. Donald Trump ratcheted that strategy up to 11. That's not to say that the Democratic Party represents the interests of Black voters especially well or that the Republican Party represents the interests of (disproportionately male, older, and poorly educated) white voters especially well. It is to say that, given the Republican Party's appeal for white racists, it's more than a bit rich for Justice Alito and the rest of the conservatives to deny a VRA remedy because plaintiffs cannot produce a map containing compact, continuous majority-minority districts that also maximize the partisan advantage for Republicans. Asking them to do so asks the impossible and rewards the contemporary Republican Party for fostering and then exploiting racial polarized voting.

-- Michael C. Dorf

The Alien Tort Statute's Translation Problem

2026-05-01T07:00:00.000-04:00

The Alien Tort Statute (ATS) was enacted by the first Congress as part of the Judiciary Act of 1789 and, with the exception of references to particular federal courts that changed over time, has not been amended since. In current form, it provides: "The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States."

In the last decades of the twentieth century, human rights lawyers discovered that they could use the ATS as a means for non-citizens to sue in U.S. courts for human rights violations. The first major case to vindicate this strategy was the decision by the U.S. Court of Appeals for the Second Circuit in Filartiga v. Pena-Irala, which involved a Paraguayan citizen suing another Paraguayan citizen for the torture and murder of the plaintiff's son in Paraguay, where the defendant was Inspector General of Police in Asuncion.

The circumstances of the Filartiga case gave rise to anxieties among conservatives, who worried that U.S. courts would be flooded with claims having no genuine connection to the United States. That fear was almost certainly overblown initially because most foreign human rights violators are not in the U.S. and thus not subject to personal jurisdiction in U.S. courts for actions committed in foreign countries. However, over time, the fear became somewhat more realistic, as non-citizen plaintiffs took to suing corporations that, they alleged, were complicit in human rights violations on foreign soil but, because of their activities in the U.S., were also subject to personal jurisdiction here.

In response, the Supreme Court narrowed the scope of prospective liability under the ATS in a series of cases. In Sosa v. Alvarez-Machain (2004), the Court allowed that claims brought within ATS jurisdiction included those that the framers would have recognized per Blackstone--for piracy, violations of safe conducts, and violations of the rights of ambassadors--and perhaps other customary international norms since recognized as "specific, universal, and obligatory," but held that the claim at issue in the case did not rise to that level. In Kiobel v. Royal Dutch Petroleum (2013), the Court held that the presumption against extraterritoriality applies to the ATS, effectively rendering it unusable in the U.S. for human rights violations occurring elsewhere. (One might wonder how this could be, given that piracy, which is one of the three Blackstonian violations, occurs outside the U.S. territory; the key for the Court was that piracy does not occur within the territory of a foreign sovereign.) In Jesner v. Arab Bank (2018), the Court ruled that foreign corporations can't be sued under the ATS. In Nestlé USA v. Doe (2021), the Court disallowed an ATS suit against a U.S. corporation that made some decisions in the U.S. affecting human rights violations in West Africa because it thought the U.S.-based actions were too tangential to the actions at issue on foreign soil.

Speaking for only a plurality in Nestlé, Justice Thomas said that the door left open in Sosa for violations of customary international law beyond the three Blackstonian originals should be shut. On Tuesday of this week, the Court heard argument in a case that presents the opportunity for the full Court to convert Justice Thomas's plurality view into a majority one. In Cisco Systems, Inc. v. Doe, plaintiffs/respondents are Chinese nationals who contend that Cisco designed software to assist the Chinese government in identifying and then torturing Falun Gong members. (Cisco's CEO and VP of its China subsidiary are also defendants/petititioners.) Coming to the Court at the motion-to-dismiss phase of litigation, the case avoids the specific problem identified in Nestlé because the complaint alleges more than mere passive direction or acquiescence in a foreign human rights violation. It alleges that what Cisco did in the U.S. was itself a violation of international law.

The petitioners and the U.S. as amicus push back in two ways. First, they argue that there is no civil liability for aiding and abetting under either the ATS or the Torture Victims Protection Act (TVPA, which is codified as a note to the ATS). The TVPA authorizes civil liability for an "individual who . . . subjects an individual to torture . . . or . . . extrajudicial killing." Citing Central Bank of Denver, N. A. v. First Interstate Bank of Denver, the petitioners and the U.S. invoke a presumption against aiding-and-abetting civil liability. The back and forth with respect to aiding and abetting is complicated and interesting, but I want to set it aside to focus on the petitioners' other main argument--for closing the door Sosa left open and allowing ATS liability only for the original Blackstonian categories of international law violations.

To my mind, with the exception of some questions asked by Justice Barrett, the oral argument did not really get to the heart of this issue. The problem, as Justice Barrett apparently sees it and as I see it, is one of translating a statute that was adopted in an era with profoundly different background assumptions about how law works.

Writing for the Court in Sosa, Justice Souter said that the ATS is a jurisdictional statute but doesn't create a cause of action. That might have made sense in 1789, when the federal trial courts did not have jurisdiction over most federal-law claims, but reading the ATS as purely jurisdictional today renders it redundant with the general federal question statute, 28 U.S.C. § 1331. If a federal cause of action has some source other than the ATS (about which more in a moment), then a plaintiff doesn't need the ATS as the basis for jurisdiction. That other source would provide the cause of action, while § 1331 would provide jurisdiction.

So . . . what is the source of the cause of action for the Blackstonian three? In 1789, the answer would have been the general law, which would have been understood to incorporate international law norms. But since the Supreme Court's 1938 decision in Erie Railroad Co. v. Tompkins, federal courts do not recognize general law as a source of causes of action. Following on criticisms like those of Oliver Wendell Holmes, Jr., who ridiculed the notion of "a brooding omnipresence in the sky," causes of action (and law more generally) were conceptualized by Justice Brandeis in his majority opinion in Erie as the product of some sovereign, whether state or federal, and whether speaking through the legislature or the courts, but if the latter, made rather than discovered.

When the federal courts abandoned the general law, matters that had previously been seen as governed thereby migrated elsewhere. Mostly that meant state law, as in Erie itself. But as Judge Henry Friendly argued forcefully in an important 1964 article in the NYU Law Review, while Erie held that there is no general federal common law of the sort that state courts produce governing torts, contracts, property, and the like, there remains a substantial body of specific federal common law.

For a long time, just about all judges, lawyers, and scholars assumed that incorporation of international law norms into causes of action fell within that body of federal common law. In a 1997 article in the Harvard Law Review, Professors Curtis Bradley and Jack Goldsmith challenged that view, arguing that, to the extent that customary international law is incorporated into domestic law, it is via state law, not federal law. Although that view has attracted some followers, it remains a dissident position. The prevailing view is that today the Blackstonian three are actionable because federal common law incorporates them. (Another approach that has more recently gained some traction is that general law persists. Professor Stephen Sachs is the most prominent proponent of reviving the general law and even overturning Erie. This too remains a dissident position, at least for now.)

Justice Souter's Sosa opinion extrapolated from Erie a lesson that, once courts recognize that they make rather than discover causes of action, they should do so only cautiously. For this cautious approach, he also noted that already by 2004 the Court had become much more hesitant than in prior years to infer private rights of action from federal statutes that did not expressly provide for any. The same cautious attitude, he suggested, should apply when it comes to finding causes of action for violations of customary international law.

The position favored by Justice Thomas in his Nestlé plurality and advanced by the petitioners and the U.S. in Cisco would take that caution to an extreme, disallowing any causes of action beyond the original Blackstonian three. Yet that position is in tension with itself.

Judicial reluctance or refusal to infer causes of action from statutory silence is ostensibly rooted in textualism and separation of powers. But note how difficult it is to harmonize the Blackstone-three-only position with the actual text of the ATS.

If one reads the ATS as purely jurisdictional, then it is difficult to see why it gives rise even to the three causes of action Blackstone recognized. Justice Souter's opinion in Sosa would give effect to those causes of action to keep faith with the intentions of the Congress that enacted the ATS in 1789, lest it otherwise become a dead letter. But doing so keeps faith only with their subjective intentions based on their now-discarded assumption that general law provides the cause of action. And textualists are not supposed to be much concerned with subjective legislative intentions that do not find their way into statutory text.

Meanwhile, however, if one concedes that the Blackstone three survive, one searches in vain for a basis in the ATS text to forbid any further expansion. The ATS refers to torts "committed in violation of the law of nations," not to torts committed in violation of whatever content the law of nations happened to have in 1789.

Perhaps I oughtn't to have pointed to these inconsistencies, however, because I worry that if this Court comes to think that textualism demands either allowing actions brought pursuant to the ATS to cover more than the Blackstonian three or nothing, it will choose nothing. But I point to them nonetheless for two reasons. First, I doubt my own influence over the Court's conservatives. And second, limiting the ATS to the Blackstonian three is effectively limiting it to nothing. Since Filartiga called attention to the ATS in the modern era, it appears that there have been no ATS lawsuits alleging piracy, violation of the rights of ambassadors, or violations of safe conducts.

Judge Friendly (yes, the same one I mentioned above), wrote in a 1975 Second Circuit case that the ATS "is a kind of legal Lohengrin; although it has been with us since the first Judiciary Act, § 9, 1 Stat. 73, 77 (1789), no one seems to know whence it came." Perhaps not, but if the trend of recent years holds in Cisco, everyone will know whither it goes: nowhere.

-- Michael C. Dorf

How Much More Dead is Democracy After the Supreme Court's Outrageous Gerrymandering Ruling?

2026-04-30T16:18:00.000-04:00

"US supreme court ‘demolishes’ Voting Rights Act, gutting provision that prevented racial discrimination." That is the headline atop The Guardian's news article reporting on the US Supreme Court's insane decision yesterday in Louisiana v. Callais, in which all six Republican-appointed jurists voted to make it possible for more Republican-run states to gerrymander even more Democrats (especially Black Democrats) out of the House of Representatives.

When I wrote my most recent column discussing gerrymandering two days ago, I had no idea that Callais was soon to be announced. Certainly, Professor Segall's column here yesterday was completely accurate in predicting the outcome of the case, but even his timing was pure coincidence. Here are his first three sentences:

Any day now, the Supreme Court is going to issue its decision in the complicated election law dispute Louisiana v. Callais. There is no suspense as to the outcome of this case. The Court will either eliminate altogether or make it extremely difficult and rare for lower courts and legislatures to take race into account when plaintiffs challenge racial redistricting under the Voting Rights Act (VRA).

Can't nail it much better than that.

Meanwhile, when the decision came down, Professor Dorf posted this on Bluesky: "The fundamental untruth in Alito's majority opinion in Callais is the assumption that the state's political goals--protecting Republican incumbents & other R seats--have nothing to do with race, as though racially polarized voting does not reflect that the GOP appeals to & promotes white supremacy."

My analysis on Tuesday, meanwhile, was not focused on the Court at all. I did, however, predict the Roberts Gang's likely role in a column from February of this year, "What Would 'Nationalizing the Election' Look Like, and Could It Be Stopped?" which I cited in Tuesday's column. I wrote:

What about the Supreme Court? Even before Trump came along, the challenge to the Affordable Care Act that led to the NFIB v. Sebelius Supreme Court ruling exposed the opportunism of the Court's supposedly principled conservatives. ... Very cool-headed people at the time were predicting that the Court might reject that claim on a 7-2 or even 8-1 vote, based on what was then known about the Republican-appointed justices' purported views. But in the end, all five (including John "balls 'n' strikes" Roberts) invented a completely ahistorical, atheoretical, and atextual action/inaction distinction to reach the outcome that they wanted to reach.
So as far as the other branches of the federal government go, we can expect all opposition [to Trump's efforts to nullify or steal the midterms] to evaporate. ...
And the Court will do what it did in the Muslim ban case, the presidential immunity case, the racial profiling case (Noem v. Perdomo), the insurrection clause case, and on and on. Indeed, given their track record, it would not be beyond the Republican Six's collective imagination/chutzpah to declare that they should not rule on a case having to do with elections at all, because to do so would be to meddle in political questions. After all, even before the most recent Republican appointment to the Court, the other five conservatives announced that they were content to treat elections -- elections! -- as non-justiciable for being political questions. The illogic has always been stunning: Unelected judges must not intervene in issues that are left to the political branches, because those are the people's representatives, so we cannot think about intervening even when someone presents a claim that the system is not in fact representing the people. Those who hope that the Court's Republican bloc would stand in the way of their patrons' holding onto power are kidding themselves.

Any remaining doubts about this hyper-conservative Court majority have now been put to rest. Note, however, that nothing in my block quote above was addressed to anything like Callais, although I am honestly surprised that I did not think to include Shelby County -- Roberts's first big swing of the sledgehammer against voting rights thirteen years ago -- in my short list of this Court's horrible decisions. Fortunately, Professor Segall did not forget, noting yesterday that the majority ruling in that earlier case was "based largely on a non-textual, anti-historical principle that Congress must have a strong reason to treat some states differently than others. There is a vast literature criticizing that novel equal state sovereignty principle made up by the Roberts Court out of whole cloth."

I will leave it to my co-bloggers to critique the unconstitutional tap-dancing that has led us to the point where the Voting Rights Act is a dead letter. There is surely plenty to say on the jurisprudential side of things, but here I want to move back to my analysis of how gerrymandering will play out in the upcoming midterms.

In one of my columns in Review of Democracy last week, I wrote that efforts by state-level Democrats to fight gerrymanders with gerrymanders, even though some have been successful, are ultimately not going to save the day, "because gerrymandered Republican state legislative majorities control too many states." Although I allowed in Tuesday's column that I might have been "wrong to say that Republicans 'control too many states,'" Callais immediately put Republicans in red states back to work creating extra-super-duper-gerrymandered maps. It is too soon to say how many seats Republicans will swipe -- on top of their already-gerrymandered sliver of a majority -- but it could reach double digits.

For current purposes, I am willing once again to set aside all of the other ways that I think the Trumpists will make a mockery of the midterms (again, with the full backing of six Supreme Court votes), which allows me to explore in more detail the fact that even extreme gerrymanders are not always foolproof.

Imagine a state with ten congressional districts and one thousand voters, split 520-480 for Republicans. If the state legislature had previously packed-and-cracked its way to, say, eight Republican seats to two for Democrats, they might have drawn a map with a total of 200 Democrats and zero Republicans in those two blue seats, with the remaining eight districts each having 65 Republican voters and 35 Democratic voters. If they wanted to go to 9-1, they would have 58 Republicans and 42 Democrats in those nine districts.

But if they now want to go all in, they would have to create a new map in which every seat (or at least the median seat) is a 52-48 affair ex ante. And that is all based on recent voting patterns. What if Trump's disastrous policies and record-low approval among Americans turns off a bunch of those Republican voters? More to the point, it would not have to be "a bunch," with only three shifts per district enough to turn the state's caucus bright blue -- 30 votes out of 1000 would make it 10-0 for Democrats. Three percent.

Again, as Hungary's election a few weeks ago reminded us, and for that matter as the 2018 Democratic rout of Republicans during Trump's first term also showed -- House Democrats' overall vote margin then was 8.6 percent, and they picked up 41 seats -- even heavily gerrymandered districts are not as rock solid as we often believe them to be.

Moreover, it is not merely general voter dissatisfaction with everything Trump has done that should scare Republicans. As E.J. Dionne noted earlier this month, referring to Trump's drastic fall in the polls:

Especially damaging to Trump and his party was the sharp decline in support for the president among Latinos, with whom he made major inroads in the 2024 election. In The Economist/YouGov survey, his approval rating among Hispanics stood at 48% approve, 47% disapprove in March 2025; by March 2026, his ratings among Latinos had fallen to 31% approve, 60% disapprove.

Frequent readers of Dorf on Law probably know where I am going with this. In a series of columns this past November and December (here, here, and here), I pointed out that even many people I respect have bought into a narrative that says that "the economy" was the reason Trump won 49.8 percent of the popular vote in 2024 and retook the White House. My point in those columns was to show that the conventional wisdom does not explain the differences in voter demographics in that election. Specifically, the only group of voters that swung toward Trump in a meaningful way was Latinos, with Latino men being the big story -- a 20 percent swing from Biden in 2020 toward Trump in 2024, leading the Latino vote overall to swing by 14 points.

I am not saying that Dionne's overall argument is wrong, but I do want to point out that describing Latino voters as the group "with whom [Trump] made major inroads in the 2024 election" seriously flattens the analysis. The fact is that in 2026, there is no woman of color at the top of the Democrats' ticket, and as I noted in the first of my columns on this topic this past November, Fox News's Juan Williams wrote this after the 2024 election:

No, it wasn’t 'the Economy, stupid.' Speaking as a Black man born into a Spanish-speaking family, let me tell you what last week’s election was really about. It was about millions of men — many with my Latino immigrant background, some with my skin color — who don’t want any woman, especially a woman of color, in the White House.

As I wrote back then, I have no special expertise or personal experiences that would allow me to weigh in on Williams's thesis. I can say that I still have not seen anyone make any other case that actually fits the evidence. For that matter, no one seems even to have tried, because they all seem to want to talk about grocery prices or something "safe" rather than race and gender. But it is important at least to make the point that Dionne's "made major inroads" thing is pretty flimsy, because it describes as somehow enduring what might have been a truly one-off shift caused by anti-Harris voting.

And that, ladies and gentlemen, is in fact very good news. People like Dionne have been saying for months -- correctly -- that Trump's immigration policies should drive many demographic groups away from Republicans at the polls. Based on what I am describing here, that job could be even easier than it looks, because although people tend to stubbornly insist that they never made a bad decision, this is a very recent one-off experience.

This is not, in other words, anything close to the emergence in the 1980's of so-called Reagan Democrats, who were essentially Reaganites in waiting and became part of the reshuffling of American politics caused by the decline and ultimate defection of Dixiecrats, along with Ronald Reagan's aggressive use of racist tropes ("strapping young buck," "welfare queen," ad nauseam). That has truly been as close to a permanent partisan realignment as one could imagine in US politics. By contrast, the "Trump picked up some Latino voters" (while still losing among Latinos overall by eight points, by the way) could be a blip.

In the title of this column, I asked 'how much more dead" American democracy is as a result of the Court's shameful Callais decision. I suppose I can say that it is a bit deader, because that has to be true when the Court's Republicans hand potentially up to a dozen Democratic seats to Republicans. It gives Republicans the opportunity to keep their House majority with even fewer votes. Even so, not only could the additional gerrymanders that they are putting in place not pan out, but even existing safe-ish gerrymandered seats could end up being flipped after the Republican incumbents lose some fraction of their voters.

To be clear, there are many other ways in which the Court's anti-democracy rulings have been and will be disastrous for the country. This is the long con for Republicans finally reaching its payoff. And all of the ways in which their assaults on democracy give them control over levers of power that they will use to protect Trump (and themselves) from a drubbing in November are still at the ready.

Even so, because I almost never find silver linings, I am happy to have reason here to say that the House could still flip this Fall. At that point, we need to be prepared for the lawsuits, lockouts, and everything else that Trump will unleash to prevent himself from ever being held to account. But as a first step, winning the House is essential, and it is still not only possible but relatively easy to imagine. That is something, is it not?

- Neil H. Buchanan

Supremely Partisan: How the Conservative Justices are Destroying the Voting Rights Act to Further the Interests of the Republican Party

2026-04-29T07:00:00.004-04:00

Any day now, the Supreme Court is going to issue its decision in the complicated election law dispute Louisiana v. Callais. There is no suspense as to the outcome of this case. The Court will either eliminate altogether or make it extremely difficult and rare for lower courts and legislatures to take race into account when plaintiffs challenge racial redistricting under the Voting Rights Act (VRA). That decision will will lead to the bizarre result that legislatures can cleverly use racial concerns to redistrict people of color in ways that violate the VRA but not allow judges to effectively provide a remedy for those violations-accomplishing the exact opposite of what the VRA actually requires. This is judicial aggression at its worst.

Section 2 of the VRA provides the following: “No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color….” The facts and background of the Callais case are well summarized by the Brennan Center:

The Callais case arises from the redrawing of Louisiana’s congressional map after the 2020 census and subsequent litigation in two different federal district courts. Shortly after the Louisiana legislature adopted a new congressional map in 2021, Black voters and organizations filed lawsuits challenging the map. The suits contended that the map violated Section 2 of the Voting Rights Act because it diluted the votes of Black voters in central Louisiana. As a remedy, the plaintiffs asked the court to order the state to redraw the map to create a second Black-majority congressional district in affected areas.

The district court ruled in their favor....The Fifth Circuit Court of Appeals subsequently affirmed the ruling, and, in early 2024, the state legislature redrew the map to add a new Black-majority congressional district running between Shreveport and Baton Rouge. However, a group of white voters then challenged the redrawn map in a second federal lawsuit. Their suit contended that the configuration of the map’s new Black-majority congressional district was an unconstitutional racial gerrymander...Black plaintiffs from the original cases intervened in the new case.

After a trial, a three-judge panel ruled in favor of the white plaintiffs. Both Louisiana and Black voters from the original case then appealed to the Supreme Court, which first heard argument in the case in March 2025. However, rather than decide the case, the Court announced on the last day of its term that the Callais case would be held over for reargument in the fall. In conjunction with the reargument, the Court asked the parties to brief a different question: Whether creation of a majority-minority district as a remedy for vote dilution found by a court under Section 2 of the Voting Rights Act violates either the 14th or 15th Amendments.

The Court is almost certainly going to answer that question in the affirmative.

There will be time enough to explain the legal shortcomings of the inevitable destruction of the VRA by the conservative justices. The purpose of this post is to show what this new election law landscape will look like once the Supreme Court eviscerates the VRA and rewrites it to suit the justices’ partisan preferences.

The story begins with a series of cases in the 1990s in which the Court held that states violate the Constitution when the “predominant intent” of the legislature when drawing an election map involves racial considerations. The Court made no distinction between legislatures trying to address the harm caused by generations of racial discrimination in map drawing and legislatures trying to continue that harm by making it more difficult for minorities to elect their preferred candidates. The Court's failure to distinguish those two types of redistricting is the cause of much of the chaos and harm we see today in election law cases.

That line of cases also held that, despite the close correlation between race and partisan voting, legislatures could draw maps that help or hurt racial minorities as long as the motivation for doing so was not racial but to insure favored partisan results. In fainess to the conservatives on the Court, the first case to so hold was decided by four liberals and Justice O'Connor. But make no mistake, that decision was likely motivated by a reaction of the justices in the majority to the other justices' refusal to distinguish the legislative drawing of maps to address racial discrimination and the creation of maps to perpetuate racial discrimination.

Given that line of cases, which effectively insulates most allegations of racial redistricting from judicial review, it became even more important for the Court to police partisan redistricting in a meaningful way. Otherwise, legislatures could simply pack and crack minority voters in ways that are clearly race based but then defend that result (which violates Section 2 of the VRA) on the basis that making it more difficult for racial minorities to elect their own candidates was done for partisan, not racial reasons.

Unfortunately, in Rucho v. Common Cause, the conservative justices held that cases presenting challenges to maps drawn for partisan purposes present non-justiciable political questions. Thus, as long as a legislature can show that it drew its map for primarily partisan not racial reasons, there will be no viable way to challenge that map, and even if such a challenge is successful, Callais will likely forbid or greatly limit race-based remedies.

Of course, Callais will not be the first time that the Roberts Court guts the VRA for partisan purposes. In Shelby County v. Holder, the Court all but ended Section 5 of the VRA, which required states and counties with long histories of using racial discrimination in voting to preclear with either the Department of Justice or a three-judge court any election changes that hurt minority voters. The Court took that step based largely on a non-textual, anti-historical principle that Congress must have a strong reason to treat some states differently than others. There is a vast literature criticizing that novel equal state sovereignty principle made up by the Roberts Court out of whole cloth.

Red states after Callais will almost certainly use the expected decision to redistrict minority voters in ways that weaken their ability to elect the leaders they prefer. You might respond that blue states will do just the opposite to help elect more Democrats. But that assumes the Roberts Court will treat those two types of racial redistricting the same way in the future. That would be a very bad bet.

More importantly, the VRA was enacted and re-enacted many times to address a specific problem: the use of race by legislatures to hurt minority voters. There is no history in this country of legislatures voluntarily using race to help minority voters until the VRA required them to do so. And Congress had the authority to enact the VRA under Section 2 of the 15th Amendment, which gives Congress the power to enforce its ban on racial discrimination in voting through "appropriate legislation."

The VRA's work is nowhere near done, though some progress has been made. The Court is about to end all of that progress, however, and the result will greatly help the Republican Party. And that judicially mandated redistricting landscape will not be grounded in text, history, or tradition, but in the partisan political preferences of the conservative justices.

-- Eric Segall

Republicans' War on the Midterms: Gerrymandering Has Limits, Trump Does Not

2026-04-28T13:12:00.001-04:00

Will the Democrats win both houses of Congress in this year's midterm elections? Will they only win one? Will any wins be negated by Republican corruption? Will the midterms happen at all? People who oppose the Trump/Republican regime are becoming rather confident. I remain decidedly pessimistic.

As I noted in an abbreviated Dorf on Law column this past Thursday, the Review of Democracy (RevDem) "is the online journal of the CEU Democracy Institute (the non-university part of Central European University." Last week, RevDem published my two-part analysis of the many ways in which the Republicans could hold onto power this year, notwithstanding polling currently favoring Democrats. In "The Threats to Nullify (or Ignore) the US Midterm Elections are Very Real," I made my only firm prediction, which is that Donald Trump will not outright cancel the elections. After all, he likes to call himself a winner, and his favorite dictatorial role models like to hold sham elections, so why miss out on all that?

The remainder of that first column described two key methods that Republicans are using to make sure that they "win" the midterms, which is to say that they would be able to point to vote counts that favor them, no matter how many people in fact oppose them. They do this, as always, by preventing people from registering to vote and then by stopping the remaining unwashed masses who somehow managed to navigate the registration process from actually voting. At one point, I offered this caustic observation: "Trump’s recent obsession with ending mail-in voting can be understood as part of this. After all, if citizens can vote without showing up at a polling place, how can neo-Nazis and Klansmen terrorize them into not voting?"

In "US Midterms: Will The Results Matter?" I moved on to the post-election landscape and described how gerrymandering prevents even legally cast votes from changing election outcomes, which is relatively familiar ground to which I will return below. Beyond that evergreen problem, I added that some Republican state legislatures are becoming more open about their contempt for democracy by trying to change the rules for state ballot initiatives, which is designed to prevent voters from overriding their unrepresentative legislative bodies. In a New York Times column that I cite in the piece, the President of Utah's Senate offered this revealing moment: "We live in a republic. We will not let initiatives driven by out-of-state money turn Utah into California."

So you see, it is all about the sanctity of listening to local voters, whom we trust to choose us. But obviously we cannot trust them so much that we think we can win without gerrymandering. And we certainly cannot trust them to be able to think for themselves in the face of out-of-staters throwing around big bucks. A republic, it seems, is a place where the voters are great, so long as Republicans can ignore them.

My second RevDem column also asks whether -- if somehow Democrats win the midterms under the crazy rules that Republicans have been putting in place -- a new Congress would even be recognized in the normal transition of power, to say nothing of whether Trump would ignore a Congress that was in Democrats' hands. I noted that his abuses of power thus far (including ignoring the courts) have occurred in situations where his political viability is not under existential threat. If he is barely tethered now, how much worse will things become if Democrats leap over all of the hurdles that stand between them and a return to power?

The hope among the people who believe in democracy (representative and otherwise) is that a big enough win by Democrats will make everything work out. Noting Hungarian voters' recent surprise ouster of the autocrat Viktor Orban, news sources are publishing articles with titles like "Orbán's defeat is a win for democracy and a warning to Trump, analysts say," and "Nine lessons for the US from Viktor Orbán’s defeat." The latter column includes this sub-headline: "As US elections approach, the Hungarian prime minister’s loss is a reminder that history does not march relentlessly toward autocracy."

Indeed it does not, but that is not a plan. We can be sure that the "warning to Trump" is being taken very seriously inside his bubble, which means that Orban's loss might end up making it more difficult to end Trump's reign, not easier. Trump, after all, does not know any other way to respond than to attack and dig in. On the weirder side of that default trait, we saw him respond to the incident at the White House Correspondents' dinner by somehow claiming it as proof that he should be allowed to build his ridiculous ballroom. Just as Republicans used to respond to any news by using it as an excuse for a tax cut -- not kidding: In the lead-up to the Iraq invasion in 2003, House Republican Majority Leader Tom DeLay said this: "Nothing is more important in the face of a war than cutting taxes." -- now every bit of news is taken as proof that Trump should always get his way.

More generally, the idea that Trump would take Hungary as some kind of cautionary tale, that is, as a reason to be more careful and do fewer things to enrage voters, is utterly fantastical. The lesson to be learned from that tale will instead be: "Don't be weak like that loser Viktor." I mean, the guy even conceded!

There is, however, an important aspect of gerrymandering that has received a lot of play among the anti-Trumpers in recent days. I wrote in my second RevDem column last week:

While California’s Democratic-led legislature has responded in kind, the numbers do not favor the Democrats nationwide, because gerrymandered Republican state legislative majorities control too many states. Therefore, a much bigger swing of voters against the Republicans would be needed to retake the House.

At the time that I was writing that column, Virginia's voters were in the process of approving a California-like initiative to allow the Democrats who dominate their state's politics to counter-gerrymander their congressional districts in a way that is likely to add four seats to the Democrats' column in November. Jennifer Rubin (former columnist for the now-demolished Washington Post op-ed page) argued on her "Contrarians" substack that this was proof that Democrats will have the upper hand. She ran through the numbers in the states and found that it is currently essentially a wash, which might suggest that I was wrong to say that Republicans "control too many states."

Rubin allowed that "Florida may try a belated re-redistricting," and indeed J.C. Bruce (a journalist who now runs an excellent one-man operation in the Sunshine State called "Tropic Press") reports today that Florida's outgoing governor "is slavishly obeying President Donald Trump’s call to rig the midterm elections in favor of Republicans so he won’t lose his G.O.P. majority in Congress." The state's congressional delegation went from 14-13 in favor of Republicans in the 2018 elections to 20-8 now (actually 20-7, due to a recent resignation), with the desperate governor's new map set to make it 24-4.

Rubin also correctly pointed out that "many Republicans are nervous that the scheme will backfire if Hispanics, as has been the case in primary voting, turn out heavily for Democrats, especially in the Miami area. In short, Republicans may well wind up losing ground." Similarly, the "Nine lessons ..." column linked above noted that "[o]nce it passes a ‘tipping point’, a thinner Republican majority can transform a formally safe seat into a contested one."

And that truly is a key point about gerrymandering. After "packing" as many Democrats as possible into a tiny number of safe seats for the minority party, the "crack" part of the "pack and crack" strategy is designed to give Republicans a bunch of districts in which, say, 45 percent of voters are Democrats who will never be able to elect a Democrat to Congress. That does indeed mean that a rather small shift of voters from the reliably Republican camp could flip some seats. In fact, that might be what happened to Orban, who saw his strongholds flip against him.

I suppose if gerrymandering were the only thing to worry about, this could be a reason for overall optimism. But this is also nothing new, in that it is always true that gerrymandering must be based on predictions that voting patterns will never change. The point is how much of a swing is necessary. Ten years ago, the estimates were that Democrats would need something close to a national 10-point win to oust Speaker Paul Ryan. (Remember Mr. FlimFlam?) They got that in 2018, and Nancy Pelosi became Speaker for two terms.

So yes, there is always a scenario in which an extreme enough swing can upend political verities, which is especially important in the context of Republicans' failure to fully nationalize the 2026 gerrymandering push. (Strangely, Indiana said no.) Optimism -- measured optimism, in any event -- is thus based on reality on this issue. This would take one of the weapons out of Republicans' armory this year, but unfortunately they have many others, and they are no longer afraid to go nuclear. (Just in case anyone has forgotten, the entire Republican Party has not only forgiven January 6 but now fully excuses it.)

Finally, and to be complete in analyzing midterm matters, I will point out that the dreams of a big Democratic sweep into power in the Senate are unrealistic at best, even if Republicans do not pull out all the stops. Democrats need to pick up four seats. Their open seat in Michigan is not a sure thing. Even if they hold that seat, they need to run the table on the seats that are even within shouting distance of competitive: Maine, Ohio, North Carolina, and Texas. Seriously? How many times will people believe that they can crack Texas? Senator Beto O'Rourke might have some things to tell us.

I do understand why people like Rubin have chosen to be optimistic. Both optimism and pessimism are contagious, and she is among those who want to encourage people to believe that positive outcomes are possible. That, however, is not my job. As always, pleasant surprises are possible. Hoping for them is still not a plan.

- Neil H. Buchanan

What's At Stake in Today's Geofence Oral Argument?

2026-04-27T07:00:00.000-04:00

Later today, the Supreme Court will hear oral argument in Chatrie v. United States. The case presents the question "whether the execution of the geofence warrant violated the Fourth Amendment." Wait. The execution of the warrant? The warrant? And what's a geofence?

The case is on cert from a Fourth Circuit en banc decision that my co-blogger Professor Matthew Tokson discussed and critiqued in July 2024. Here is how he introduced the case:

On May 20, 2019, a man wearing a fisherman’s hat and a traffic vest robbed a bank in Midlothian, Virginia. Unable to identify the robber, police served Google with a geofence warrant—a warrant targeting all cellphone users in a certain area at a certain time. They obtained information on several cellphones in the area of the bank at the time of the robbery, including the phone of Okello Chatrie, who was eventually identified as the culprit. Chatrie challenged the validity of the geofence warrant, arguing that it was unconstitutionally overbroad.

Chatrie lost in the Fourth Circuit. His cert petition presented two questions, but the Supreme Court granted review on only the first one, quoted above. Although petitioner's counsel wrote that question, it doesn't fully reflect the argument petitioner's merits brief makes. The brief argues first that the geofence warrant itself, and not merely its execution, was invalid because it was effectively the equivalent of a general warrant, given the number of mobile phone users it swept up. It is widely accepted that general warrants--those that did not target particular individuals for particular reasons--were a chief abuse that motivated the adoption of the Fourth Amendment in the first place.

In addition to arguing that the original geofence warrant was invalid, petitioner makes a number of other arguments about its execution. Even if the original warrant was valid, petitioner argues, the subsequent steps after the initial dragnet that allowed law enforcement eventually to zero in on him were themselves searches for which a warrant was required but not sought or obtained.

Before getting to any of that, however, petitioner addresses an argument made by the Fourth Circuit that no warrants were necessary at all because of the third-party doctrine. The core idea is that if you voluntarily disclose information to a private ("third") party, and that third party decides to hand the information over to the government, you have not been subject to government surveillance. If that strikes you as not merely a giant opening for the government to invade privacy but also wrong as a factual matter, you're not alone. Professor Sherry Colb raised that objection in numerous places, including this 2002 Stanford Law Review article. The petitioner argues that the third-party doctrine shouldn't apply to cell phone location data, citing, among other things, the Supreme Court's expression of concern about the scope of privacy at issue in Carpenter v. United States.

The petitioner's merits brief also argues that petitioner, not Google, owns the location data. That may seem like a strange point, but it is motivated by a turn in some recent cases towards reconceptualizing the Fourth Amendment as a protection for property, not privacy. Professor Colb also critiqued that move in various writings, including this 2004 article in the Michigan law review. That article was framed in substantial part as a response to positions that Professor Orin Kerr took in his scholarship. (Professor Kerr has filed an amicus brief on his own behalf in support of the government in Chatrie.) In addition to taking issue with the proper role of property in our understanding of the Fourth Amendment, Professor Colb also disagreed with Professor Kerr's suggestion that Congress, rather than the courts, should fashion protection against threats to privacy from new and fast-changing technology. Her position was not that Congress shouldn't do so but that the courts were needed nonetheless. The ensuing years of inaction by Congress strike me as vindicating her view.

The good news regarding Chatrie for privacy proponents is that the particular outcome of the case might not matter much. As Amy Howe notes in her SCOTUSblog preview, "Google now stores location data on mobile devices themselves, rather than in its own database." Thus, geofence warrants to Google will no longer yield a dragnet.

However, other companies are not necessarily so solicitous of privacy. When Google was collecting location data, it was doing so from all devices running Google apps. Thus, even if you didn't have an Android device, running Google for search, using Google Maps, or having Gmail on your phone meant that you were sharing your location data with Google. As Professor Tokson's 2024 essay explained, it was nearly impossible to opt out. It's progress that Google no longer collects such data, but other apps could be collecting it and sharing location data with the government, and even if not, some location data can be derived from mobile providers like Verizon and AT&T.

Chatrie holds potentially broader implications as well. The government's brief repeatedly states that the geofence and other data provided information only about the petitioner's "public movements." Among its other arguments, the government contends that a person who is out in public has no reasonable expectation of privacy in their location information because other members of the public can plainly see where they are. There is some reason to hope that the Court will reject this argument, which it already rejected in Carpenter. That case distinguished more primitive tracking methods of the sort upheld in United States v. Knox.

But there is also reason for concern. Chief Justice Roberts was the only one of the Court's current conservatives who was in the majority in Carpenter. Unless at least one of Justices Kavanaugh and Barrett (neither of whom was on the Court when Carpenter was decided) join with him in seeking to protect privacy in the digital age, the Court could decide Chatrie in a way that gives the green light for practices and technologies that ensure effectively constant surveillance of everyone. The Palantir-provided apps that ICE agents use to instantly identify and issue veiled or not-so-veiled threats against anyone who protests their activities speak to the scope of the threat.

That is not to deny that new technologies can enable federal, state, and local law enforcement to quickly identify and apprehend dangerous actors. Ideally, Congress would craft legislation that carefully balances the law enforcement gains against the privacy and other losses from each new technology. In reality, if the Supreme Court does not do so, no one will, and the result will be a surveillance state.

-- Michael C. Dorf

Updates: Column re Stealing/Ignoring the Midterms Delayed; New Dorf Column on Verdict Today

2026-04-24T15:45:00.003-04:00

To Dorf on Law’s readers:

Yesterday, I wrote that I planned to “return[] tomorrow with some additional thoughts” about the various ways in which Trumpists will try to abuse and mangle the US electoral system to stay in power. Due to unforeseen circumstances, I am unable to post that column today. I will return next week to belatedly deliver on my promise.

In the meantime, Professor Dorf published an excellent new column today on Verdict: “The Fifth Circuit Overrules the Supreme Court and Nullifies the Establishment Clause.” That column should get everyone’s weekends off to a thoughtful start.

- Neil H. Buchanan

Totalitarian Threats to US Democracy in the Shadow of the Hungarian Elections

2026-04-23T15:29:00.001-04:00

Yesterday and today, The Review of Democracy (or RevDem) published my new analysis of the Trump/Republican threats to rig or simply negate the results of the 2026 US midterm elections. Although I originally wrote it as one (long) op-ed, the editors sensibly broke it in two and published the parts under separate titles:

"The Threats to Nullify (or Ignore) the US Midterm Elections are Very Real," and

"US Midterms: Will The Results Matter?"

My analysis in those op-eds expands upon my Dorf on Law column from two months ago, "What Would "Nationalizing the Election" Look Like, and Could It Be Stopped?"

Interestingly, RevDem is an especially important outlet right now, because it has been a key part of the opposition to Hungary's so-called "illiberal democracy." When I wrote my first op-ed for them last November, I noted in passing in a Dorf on Law column that RevDem "is the online journal of the CEU Democracy Institute (the non-university part of Central European University, which Hungarian dictator Viktor Orban drove out of Budapest several years ago)." It is thus gratifying to see my warnings about growing autocracy in the US published in that journal.

Orban's overwhelming defeat in the April 12 elections in Hungary is rightly being described as an important reminder that even locked-down autocracies can be vulnerable to the people's will.

I will have more to say about all of this, of course, but I am aware that people have limited free time, which means that it would be unrealistic to hope that they could read the RevDem op-eds and then read another full piece here. I will thus stop for now, returning tomorrow with some additional thoughts.

- Neil H. Buchanan

Trump's War on Bicycles Runs Into His War Against Iran

2026-04-22T07:00:00.000-04:00

In the 1988 film Who Framed Roger Rabbit?, the viewer eventually learns (spoiler alert!) that the villainous Judge Doom (played by Christopher Lloyd) is the sole owner of the Cloverleaf Corporation, which plans to destroy Toontown to build a freeway and decommission the city's effective public transit system. In the movie, Doom is thwarted. In the reality of 1940s Los Angeles on which the plot is based, car culture was born.

I don't know whether Donald Trump ever watched Roger Rabbit. If he did, I imagine that, when he wasn't leering at Jessica Rabbit, he was identifying with Doom. At least that is the inference one must draw based on the policies Trump's administration is pursuing.

Immediately after Sean Duffy was confirmed as Transportation Secretary in January 2025, his department issued a press release announcing the end to various efforts to combat or even measure climate change and decrying "woke" policies of the prior administration. Apparently, bike lanes and pedestrian trails are woke. In September of last year, the administration canceled funding for creating such lanes and trails around the country. Why? Because they are, according to the Department of Transportation, "hostile to motor vehicles." As in other contexts, so too here, every accusation is a confession.

I have been bicycling since I was three years old. I consider myself lucky to have been struck by a motor vehicle only once. (A pickup truck cut the corner on a turn and sideswiped me. I suffered mere road rash, although my front derailleur was damaged, so I had to bike to the shop without the use of all of my gears.) However, like just about anyone who cycles regularly, I have had close calls, often involving suddenly opening car doors. The close calls were much more frequent when I lived in New York City, given the density of cars. My experience is entirely typical. Thus, one of the main reasons for investing in bike lanes and closing motor vehicle access to certain urban thoroughfares is safety.

And it works. Thus, a recent government study found that the installation of bike lanes along part of 15th Street through the National Mall in Washington, D.C. "reduced all roadway crashes by 46 percent and bicycle injury crashes by 91 percent." It also eased automobile traffic. Win-win. So naturally, the Trump administration sought to eliminate the bike lanes and revert to the prior arrangement, with its greater dangers to cyclists and slower traffic for cars.

Yesterday, a federal district judge found that the administration's plan to eliminate the bike lanes was arbitrary and capricious. She thus granted summary judgment to plaintiff Washington Area Bicycle Association and blocked the elimination of the bike lanes. The core of the judge's reasoning is that the government failed to take account of any real data or to provide a remotely plausible justification for its decision. That strikes me as entirely correct because it is a matter of public record why the Trump administration opposes bike lanes: bicycles are woke and must get out of the way of manly cars.

Readers familiar with my penchant for occasional snark may think I'm joking, but I'm not. The policy of the Trump administration--across the Departments of Transportation, Energy, Interior (responsible for the Mall as a National Park), Defense, and everywhere else--is to promote gas-guzzling as against renewable energy, public transportation, bicycles, and just about anything associated with environmentalism, even if doing so undercuts public safety and even if it makes life worse for drivers of and passengers in automobiles.

The Trump administration does not appear to be pursuing these policies simply because it is in the pocket of big oil. Recall that U.S. oil company executives were not part of the decision to attack Venezuela and were not especially enthusiastic about being handed its oil fields. That is not in any way to deny that the most corrupt (and overall worst) president in American history has courted and received the support of fossil fuel interests. He plainly has. But his administration's zeal for petroleum-fueled internal combustion engines and hostility towards any kind of alternative reflects not just policy-for-payola. It is dogma.

Dogma eventually loses out in a contest with reality, however, and the reality is that, as even Trump's Energy Secretary recently admitted, retail gasoline prices will likely remain high into next year. (To be sure, he then recanted, but he appeared to do so only because his honest assessment angered the Blusterer in Chief.) Higher gas prices will have ripple effects, some of which are already occurring: greater reliance on public transportation and renewable energy, increased purchases of electric vehicles, and . . . wait for it . . . more bike-friendly transportation infrastructure.

Let me be clear. Trump's decision to make war on Iran and his repeated threats to attack civilians are immoral, illegal, and unconstitutional. They are already having disastrous consequences for countless people all over the world. I am not in any way saying that the war is beneficial because it has led to higher oil prices. What I am saying is that incentive effects of those higher oil prices will somewhat mitigate the cruelty and stupidity of Trump's domestic cars-at-all-costs policies.

-- Michael C. Dorf

The De-Platformer’s Dilemma—John Eastman Edition (Guest Post By 1L Milo Ratner)

2026-04-21T07:00:00.001-04:00

In a 2008 paper titled “Conspiracy Theories,” Cass R. Sunstein and Adrien Vermeule described the key dilemma involved in a government responding to a conspiracy theory. As they put it, “Ignoring the theory allows its proponents to draw ominous inferences from the government’s silence,” but “to rebut the theory may be to legitimate it.” This is fairly intuitive: if your belief is that the government is covering something up, any denial is just more proof to you of the coverup. Sunstein and Vermeule propose “cognitive infiltration” as a solution to this dilemma. Their idea is in many ways as dystopian as it sounds: the government would send in agents to the breeding grounds of conspiracy theories (in the modern day, perhaps 4Chan or Truth Social) where the agents would raise doubts and reveal logical holes in the freshly coalescing theories.

Sunstein and Vermeule were primarily concerned about conspiracy theories surrounding the September 11th terrorist attacks from 7 years prior. They cited studies suggesting that 16% of Americas believed there were bombs planted in the Twin Towers. Perhaps more concerningly, 78% of respondents in seven Muslim countries believed there was no Arab involvement in the attacks. Given 9/11 kicked off the “war on terror,” this statistic suggests that large portions of the invaded countries believed the invasion occurred entirely without provocation (inadequacy or misdirection of the provocation aside.) Sunstein and Vermeule argued that the closed and oppressive nature of the governments in the responding countries led to a justified distrust of official sources.

In November 2020, incumbent Donald J. Trump lost the election for President of the United States of America. In December 2020, John Eastman, former dean of Chapman University School of Law (later renamed after a large donation), wrote a memo where he suggested that then Vice President Mike Pence could simply choose not to count the votes in seven states that were disputed as fraudulent (including Arizona – this author’s home state), allowing Trump to be elected. In a legendary exhibition of legal ethics, Eastman then wrote:

“The main thing here is that Pence should do this without asking for permission – either from a vote of the joint session or from the Court.”

Pence refused. On January 6, 2021, Eastman spoke about his memo at the “Save America” rally. That same day, protestors outside the capitol building chanted “Hang Mike Pence!” A mob stormed the capitol.

On January 23, 2021, Eastman claimed on CNN that “antifa” was involved in organizing the rally. Eastman continued to claim the election was stolen and attempted to have states “de-certify” their results. Eastman has been disbarred by California and was indicted in two separate criminal cases. Eastman has claimed that the proceedings against him were again part of an election-stealing conspiracy, remarking to an interviewer:

“If they keep us tied up, spending our resources on defense against these things, then those are resources and time and talent that cannot be deployed in furthering elections for people who are sensible and want to get our country back on track.”

On April 16, 2026—one day after Eastman was disbarred by the California Supreme Court—the Cornell Law School student chapter of the Federalist Society hosted Eastman for a talk about “politicization of prosecution.” Eastman talked for an hour or so about what he described as “lawfare,” the use of the legal system to oppress political opposition. Shockingly, he made no mention of the current administration’s use of blatant political prosecution against, among others, Trump-elevated Federal Reserve Chair Jerome Powell. Eastman portrayed his role in the January 6 riot as simply “defending a client” but continued to assert that the election was stolen, citing voting numbers in Pennsylvania among other discredited theories. Eastman is not the first conspiracy theorist to speak to the Cornell Fed Soc chapter. In September last year, the organization hosted Geoff Shepard, whose talk was entitled “The Watergate Setup: Lawfare & The Plot Against the President” (no doubt an attempt to rehabilitate President Nixon’s image in light of Trump.)

Cornell University, and more specifically Cornell Law School, has been placed into a dilemma much like Sunstein and Vermeule described in 2008. Cornell has potentially legitimized Eastman’s conspiracy theories by providing them with a platform and associating them with an Ivy League name. Cornell, as a private organization, is not legally bound by the First Amendment (ignoring the ever-present threat of politically motivated funding freezes.) That said, Cornell has voluntarily made “free and open inquiry and expression . . . even of ideas some may consider wrong or offensive” one of its core values. But that does not mean that anybody and everybody receives an official invitation. No one would expect the astronomy department to host talks about young earth creationism.

Hard problems arise when student organizations issue invitations to the likes of Eastman (who holds offensive views on other issues beyond the 2020 election). Should Cornell have made an exception to its free-and-open-inquiry policy by excluding Eastman? Doing so would have risked feeding the prominent conservative theory of liberal censorship and indoctrination at our universities. It would also risk Cornell’s relationship with the highly-funded national Federalist Society (in 2024, Fed Soc spent $27.7 million, in contrast with $4.73 and $1.1 million from the American Constitution Society and National Lawyers Guild respectively.) Cornell’s ultimate obligation ought to be to its students’ education. An apparently-political decision to interfere with a student organization may undermine that goal. After all, hearing legitimate conservative academic thought, especially in a realm as subjective and politically charged as law, is a tangible and perspective-expanding benefit to students. Any curation by Cornell risks calling into question the institution’s impartiality. Although that ship may have sailed for the present, I have naïve hope for the future. Cornell ultimately ought not to act, even against dangerous and democracy-threatening conspiracy theories. A conspiracy theory like Eastman’s will only further itself with outside opposition.

Sunstein and Vermeule might be right: cognitive infiltration may be the solution to the theories and views promoted by Eastman and others (such as another recent guest of Cornell’s Fed Soc chapter, currently suspended University of Pennsylvania Law Professor Amy Wax). But cognitive infiltration where, and by whom? Any attempts by anyone on the left of the political spectrum to refute Eastman would surely be fruitless. A politically-charged debate of any kind would only encourage tribalism and picking sides: exactly the type of behavior that would lead an otherwise rational center-right conservative to be willing to adopt a conspiracy theory like Eastman’s. Instead, there has to be an internal reform. The national Federalist Society (which provides financial and logistical support for its favored speakers) and individual law school student chapters themselves must refuse to act as a conduit for conspiracy theories. And this in turn requires action by students.

Here, finally, is where it may be worth listening to a first-year law student who is surrounded by the petty politics of my peers. Reformation of Fed Soc away from conspiracy and into legitimate conservative legal scholarship and philosophy is not an unachievable task. At least judging by the membership of the Cornell chapter, the Federalist Society, like the Republican Party, contains a diverse group of people with a diverse set of views. Some view themselves as moderates who like to hear both sides; some are opportunists taking advantage of potential prestigious career benefits; and many are zealous advocates of conservative values (be they economic or religious). There’s only one thing all of them have in common: their identity as a member of the Federalist Society.

If that identity becomes synonymous with support for Donald Trump and his movement, then like the people in the majority-Muslim countries who preferred to believe that the United States blew up its own buildings and citizens than be associated with terrorism, Fed Soc students may, rather than reject their identity, embrace the absurd conspiracy theory that the current President continues to promote even despite his later election. But it doesn’t have to be part of that identity. The Federalist Society could bring speakers like Stephanos Bibas, Gregory Jacob, Liz Cheney, or other conservatives who have worked to preserve the legitimacy of our election system. If the students involved desire it, the Federalist Society could be among the most powerful democracy-preserving institutions in America. It’s up to them to reject conspiracy theories like those pedaled by Eastman.

-- Milo Ratner is a first-year JD student at Cornell Law School

The In-Your-Face Corruption and Arrogance of Justice Clarence Thomas

2026-04-20T07:00:00.003-04:00

An astonishing event occurred last week at the University of Texas. Justice Clarence Thomas gave a speech in which he accused progressives of betraying the core principles of the Declaration of Independence. He said that:

Progressivism has made many inroads in our system of government and our way of life. It has coexisted uneasily with the principles of the Declaration. Because it is opposed to those principles, it is not possible for the two to coexist forever…. Stalin, Hitler, Mussolini, and Mao all were intertwined with the rise of progressivism, and all were opposed to the natural rights on which our Declaration was based. Many progressives expressed admiration for each of them shortly before their governments killed tens of millions of people.

Others have criticized Thomas's bizarre view of history, so I want to make a different point. The event was hosted and paid for by The University of Texas School of Civic Leadership, a part of the University funded at least in part “by billionaire Harlan Crow, who was integral to the founding of the Civitas Institute at the university.” In fact, Crow attended the event, and Thomas recognized and thanked him at the beginning of his speech. The event and Thomas's personal shout out to his friend and benefactor displayed an egregious indifference by Thomas to the many ethical lapses inherent in his relationship to Crow.

Crow subsidized the private school tuition of Clarence Thomas's adopted son, supplemented Ginny Thomas's income when she was working for far right wing organizations such as the Heritage Foundation, and financed the house that Thomas's mother lives in. Crow has also paid for too many to count luxury trips Thomas has taken both alone and with his wife. This financial enabling of a lifestyle that Thomas and his family cannot otherwise afford is not close to the same thing as providing an occasional gift. The largess creates reliance and economic interests that are inappropriate for any government official.

It is irrelevant whether or not Thomas would have voted differently without this extreme subsidization. The relevant standard for judges is the appearance of impropriety. Here we have actual, real life impropriety.

Moreover, Thomas once had to amend thirteen years’ worth of disclosure reports to include details of wife Virginia Thomas’s sources of income from Hillsdale College in Michigan, the Heritage Foundation, and the Republican leadership in the House of Representatives. What makes all this so much worse is that, according to Pro Publica, Thomas complained in 2000 to various well-heeled folks about the justices’ low salaries:

After almost a decade on the court, Thomas grew frustrated with his financial situation, according to friends. He had recently started raising his young grandnephew, and Thomas’ wife was soliciting advice on how to handle the new expenses. The month before, the justice had borrowed $267,000 from a friend to buy a high-end RV….

Thomas gave a speech at an off-the-record conservative conference. He found himself seated next to a Republican member of Congress on the flight home. The two men talked, and the lawmaker left the conversation worried that Thomas might resign.

Congress should give Supreme Court justices a pay raise, Thomas told him. If lawmakers didn’t act, ‘one or more justices will leave soon’ — maybe in the next year….

[Chief Justice] Rehnquist focused his annual year-end report [that year] on what he called ‘the most pressing issue facing the Judiciary: the need to increase judicial salaries.’

Crow’s subsidization of Justice Thomas’s lifestyle is an old story but two aspects of it must be emphasized. First, despite all the reporting about Thomas’s acceptance of Crow’s generosity, the justice did not think twice about attending an event at a Crow-funded organization and recognizing his friend publicly and warmly. This in-your-face insensitivity to the criticism Thomas has received for accepting Crow’s salary supplements displays a stunning arrogance and indifference to public perception. It is as if Thomas is broadcasting to the world that he will do what he wants no matter how questionable his behavior. It must be remembered that Thomas has never denied that he accepted, to say it again, money from Crow to help with his wife’s salary, his mother’s house, and his son’s tuition, among many other gifts.

The second point is even more important. Thomas is finishing his 35^th year on the Supreme Court. His former clerks now hold positions of power all over the federal government, most prominently in the federal judiciary, as well as in legal academia. According to the New York Times:

[S]ince Justice Thomas came through the fire of his confirmation hearings and onto the Supreme Court, he has assembled an army of influential acolytes unlike any other — a network of like-minded former clerks who have not only rallied to his defense but carried his idiosyncratic brand of conservative legal thinking out into the nation’s law schools, top law firms, the judiciary and the highest reaches of government.

One simply has to wonder how much of Thomas’s disregard for ethical behavior has rubbed off on these former clerks who now wield enormous power. These clerks include, among many others, the far-right Berkeley law professor and torture memo author John Yoo, disgraced lawyer John Eastman who played a key role in Trump’s election denial strategy (about which more on this blog tomorrow), Fox News Anchor Laura Ingraham, whose Trump bias needs no citation, and Fifth Circuit partisan GOP judge James Ho.

At the end of the day, this story is all about hubris. A Supreme Court justice simply should not be accepting these kinds of gifts. A Supreme Court justice should not violate disclosure laws for thirteen years. And a Supreme Court justice should be able to recognize all this and apologize for it instead of proudly and publicly showing off his primary benefactor.

By 2019, after years of salary supplements from Crow and others, Justice Thomas no longer complained about his low salary. According to Pro Publica:

By 2019, the justices’ pay hadn’t changed beyond keeping up with inflation. But Thomas’ views had apparently transformed from two decades before. That June, during a public appearance, Thomas was asked about salaries at the court. ‘Oh goodness, I think it’s plenty,’ Thomas responded. ‘My wife and I are doing fine. We don’t live extravagantly, but we are fine.’

A few weeks later, Thomas boarded Crow’s private jet to head to Indonesia. He and his wife were off on vacation, an island cruise on Crow’s 162-foot yacht.

And so it goes….

Eric Segall

Interchangeable Idiots and Sociopaths: Do Individuals Matter in Trump's World?

2026-04-17T16:29:00.001-04:00

I have spent a fair bit of time over the past year or so pondering a surprisingly difficult and recurring question: Does it matter which specific people work for the Trump regime, such that personnel changes could make a difference in what happens to people in the US and around the world?

Last month, for example, I opined that removing now-former DHS Secretary Kristi Noem would make no substantive difference to the horrors of Trump's ongoing anti-immigration atrocities. (To be clear, those atrocities are also being visited upon non-immigrant US citizens who are being racially profiled -- with the blessing of the Republican appointees to the US Supreme Court.) In that piece, I wrote that "the question here is what would change if Noem were no longer in office (via impeachment or any other means, such as being fired for some reason). The answer is nothing."

Over time, I have begun to think of this as a nearly universal rule of Trumpism: Nobody matters, because someone just as bad is always available to step in. I continue to believe that the only remaining exception to this rule is Robert F. Kennedy, Jr., because his reign at Health & Human Services could almost certainly not be replicated by anyone else. That is, RJK Jr. is uniquely dangerous because of his government position, a position that his broken mind abuses in ways that even other nutcases in his world would not come close to copying. That is quite different from, say, Stephen Miller or Russell Vought, who would have Trump's ear no matter what, even if they (like, for example, Steve Bannon) were no longer officially part of the Administration.

Pretty much any functionary could carry out whatever those guys tell Trump to get done, which means that their poisonous influence is not office-specific. And even though I argued last month that there were other reasons to hope for an impeachment effort against Noem (mostly as a matter of highlighting the terrible things that she was doing at Trump/Miller's behest), no one thinks that anything is substantively different under Noem's replacement, Markwayne Mullin.

Indeed, the story du jour of jaw-dropping gratuitous cruelty is ICE's arrest of an 85-year-old widow from France: "[I]mmigration agents arrested her in her nightgown at her late husband’s home[, and she] is now in a detention center hundreds of miles away in Louisiana, her own three children back in France unable to reach her and fearing for her health." Similarly, when a young woman (who is not a US citizen but who has lived here since she was an infant) married a US Army sergeant and showed up with her citizen husband at his base to move into their new home together, she was arrested. The New York Times reported:

In a statement, the Department of Homeland Security said that Ms. Ramos had been arrested “after she attempted to enter a military base.”
“She has no legal status to be in this country and was issued a final order of removal by a judge,” the statement read. “This administration is not going to ignore the rule of law.”

What kind of sociopath (and hypocrite) comes up with that one? As The Times reported, "[t]he couple checked in at the visitor center, identification in hand, ready to complete the steps that would allow her to move into his home on the base." Insinuating some kind of nefarious intent -- she "attempted to enter a military base" -- is exceptionally twisted, which means that whoever in DHS came up with that one might in some narrow sense be irreplaceable. Even so, the arrest and the cruel and unjust underlying policy behind it are baked into this administration's rancid stew. (She has been released, but only after having been forced to spend five days in a detention center. And Kilmar Abrego Garcia's experience shows us that the Trumpists never let these things go, so her story is almost certainly not over.)

Immigration is one of the signature sociopathic policy obsessions of the Trumpists. (Anti-trans bigotry is another.) But what about economic policy? Are those harmful decisions dependent on the specific people involved, or is that also on autopilot? Economics seems to fit more readily into the it-doesn't-matter-who's-officially-doing-it category, like immigration, rather than resembling RFK Jr.'s truly unique war on science, health, and medicine.

After all, Trump himself has shown that he cares about one specific policy almost as much as he cares about being the center of attention at all times, and that policy is to increase tariffs. He stubbornly refuses to believe that other countries have not been "ripping us off," that tariffs are almost entirely paid for by Americans, and that his attempts to use tariffs to punish other countries for sins such as refusing to allow him to take Greenland are creating volatility that is bad for the US economy. Why would any of that change if there were turnover in economic advisors?

In my Dorf on Law column yesterday, I mentioned in passing a recent comment by Trump's chief economist, Kevin Hassett, who went on TV and tried to argue that prices could come down: "Imagine that, if oil prices start going back down, because the situation resolves itself, somehow, that you could be looking at ... at inflation close to zero." Imagine! That is not what a serious person would say.

And Hassett is not a serious person. In a column last year, I poked fun at both Hassett and Trump's anti-China/pro-tariff zealot Peter Navarro, noting that both of them have pretty standard elite academic credentials (Ph.D.'s from Ivy League economics departments, some faculty appointments) but are also absolutely unhinged. Because both of them deserve a pile-on, I will note one more source of merriment for each half of that disastrous duo.

In February 2025, The Bulwark published a piece by Jonathan V. Last, "Meet Kevin Hassett: Conservatism’s Invincible Ignoramus," which included this nugget early on:

I want to tell you two stories about Hassett, one tiny and one large, to illustrate what a silly man he is.
The point isn’t to clown on Hassett—the world is full of silly people—but rather to demonstrate how bankrupt the conservative intellectual world has become. Because no system based on any kind of merit would elevate a man like Hassett to the ... heights he has reached.

The second of Last's two stories was about Hassett's co-authored book called Dow 36,000, which I described in detail in my column last April and again more briefly in yesterday's column. Last points out that the right-wing thinktank world shielded Hassett from criticism for that ridiculous book.

The first story, however, provides an even more important insight into Hassett's practiced stubbornness. Hassett once asked a very stupid question masquerading as contrarianism -- "Why don’t sophisticated money managers and operating companies invest in comic books?" -- and then simply refused to understand that he had made a fundamental economic error. Last described his attempt to engage in good faith with Hassett in direct conversation: "Your argument, I said to Hassett, amounted to: If you only pick stocks that go up, then stocks are a great investment. Hassett was unmoved. Utterly and completely. It wasn’t that he didn’t understand me; it was that he didn’t want to understand. Invincible ignorance."

Navarro had an even rougher go of it when The New Yorker in late December 2025 published Ian Parker's "Peter Navarro, Trump’s Ultimate Yes-Man: The tariff cheerleader established the template of sycophancy for Trump Administration officials." That piece ran to 27 printed pages, and it was a hoot -- at least for those who can ignore the damage that Navarro has wrought on the US political system, far beyond the tariff stuff. (Some readers might recognize Navarro for his so-called "Green Bay Sweep," which was supposed to keep Trump in the White House on January 6, 2021.) Parker's essay is one of those gems that offers quotable bit after quotable bit, each one somehow more head-slapping than the others. I will content myself with just one:

Navarro, long rejected and unelected, made no attempt to set professorial boundaries in his new advisory role. He threw himself into every campaign argument. Trump hadn’t hired a kooky, maverick academic who happened to agree with him on tariffs, as has often been suggested. Rather, he’d found someone with no compunctions about performing agreement. Navarro, in his ethnic scapegoating, quickness to anger, and difficulty with noncompliant women, may have been temperamentally aligned with the MAGA movement he was joining.

OK, two:

Long-term service to Trump requires both egomania and its opposite: self-annihilation. The man whom Navarro likes to call the Boss seems to value insincere, or bought, obeisance—the flapping and fussing of a maître d’—more than heartfelt fandom, which lacks the piquancy of humiliation. This work environment has clearly suited Navarro, whose sense of his own worth, though strong, seems to be divorced from allegiance to his own ideas, and who had long craved [large] audiences ... . He was ready to do whatever.

It is worth adding as well that Parker presents a very convincing case that Navarro's Ph.D. dissertation was the product of academic dishonesty, but that probably caught my attention simply because of my institutional and professional interests. But the larger point from Parker's piece is that Navarro is a former political independent whose prime motivating force has always seemed to be an aching sense that he is not as important as he is certain that he deserves to be.

Contrasting Navarro with Hassett is thus interesting, at least in the sense that Hassett has been an absolute right-wing hack from the get-go. (For details, see my piece from last April.) Hassett apparently likes being on the news -- so much so that he is willing to say things that would embarrass a less oblivious man -- but his long-term commitment has always been to the Republican Party. Hassett is the ultimate partisan and ideologue. Navarro is the ultimate dilettante and egomaniac.

Even so, that difference would not seem to matter when assessing the question at the heart of this column: Would either man's departure from the Trump Administration matter? It is true that Hassett might be more important than he seems to be, given that his title is "Director of the National Economic Council of the United States," which generally is not a power center, suggesting that somehow he has made himself less dispensable than others in his position would be. Similarly, Navarro's title -- "Senior Counselor for Trade and Manufacturing" -- is not usually high-profile.

Again, however, neither of these guys brings anything to his job that even remotely resembles unique or irreplaceable skills or innovative ideas. That we can tell entertaining stories about them makes them no different from Noem, former AG Pam Bondi, or the guy at FEMA who believes that he has been teleported multiple times.

Trump's world is a machine -- not a well-oiled machine by any means, but a perpetual motion machine nonetheless -- that will replicate itself as needed until and unless the US somehow pulls a Hungary. In the meantime, at least some of Trump's minions provide the world with inadvertent comic relief.

- Neil H. Buchanan

It Doesn't Matter That Nobody Understands Stock Market Swings (Even Though Stock Markets Matter)

2026-04-16T15:47:00.001-04:00

Two of the major US stock indices hit record highs yesterday (and are up again today, although markets are still open), even as the Iran war looks more and more like a quagmire and consumer sentiment is at an all-time low. How could that be happening? I will eventually get around to refusing to answer that question, but I will begin this column with a digression.

There are some truly terrible jobs out there. Some are shockingly dangerous, such as logging and roofing. Some are deeply unpleasant as an assault on the senses, such as sanitation workers and "professional armpit sniffers" for deodorant companies. Some are possibly even more unpleasant as an assault on one's sanity, such as staffers for politicians and late-night TV hosts who watch right-wing cranks on podcasts and cable news for a living.

That said, one of the most pointless, soul-deadening jobs that I can imagine is being the person who has to try to explain why stock markets went up or down on any particular day (or even over longer time frames). What is so awful about that job? It would be bad enough if it were merely repetitive, saying things like "the Fed cut rates, so stocks rallied," or "traders anticipated a bad inflation reading this month, so markets dropped," on an endless loop. What makes it ever so much worse, however, is that such people often find themselves saying that "the Fed cut rates, so stocks fell," or "traders anticipated a bad inflation reading this month, so markets rose."

As confusing as all of that is, it is possible to convince oneself that those are not contradictory statements, essentially because every day's price changes are over-determined. This allows anyone to claim that whereas, say, a Fed cut should normally be good news, it was different today because ... uh ... er ... because the markets had previously priced in the cut, so other bad news took center stage, or because a Fed cut now means a Fed increase sometime later, maybe?

In light of these imponderables, it is always worth going back to one of my favorite quotes from my favorite economist. John Maynard Keynes (the bête noire of the right for most of the last one hundred years) is perhaps most famous for saying "In the long run, we're all dead," or perhaps "When the facts change, I change my mind. What do you do, sir?" (The latter quote is possibly mis-attributed to Keynes). He also, however, once wrote that the movements of financial markets and other transactions "can only be taken as a result of animal spirits ... and not as the outcome of a weighted average of quantitative benefits multiplied by quantitative probabilities."

Keynes was an especially reliable observer in that regard, because he was an active speculator who had real success (along with some disastrous failures) managing the endowment of King's College, Cambridge University. If he says that humans make decisions based on instinct and uninformed overconfidence, I tend to believe him.

On the other hand, even though I have known all of this for my entire professional career, I do have some sort of predictive model in my mind that is on autopilot most of the time. When stocks plunged a year ago in the aftermath of Trump's ridiculous tariffs, that made sense. When stocks soon recovered and went on to set new records, however, that made no sense -- especially because the things that seem plausibly important to businesses had only become worse, most importantly the utter uncertainty of everything in the second Trump term.

When people talk about "market fundamentals," the idea is that stocks as claims on future profits of a company should be priced in light of those basic facts. If something happens to make a company's future seem more promising -- beating a lawsuit for fraud, say, or announcing a valuable patent -- share prices should rise. Things like price-to-earnings numbers are supposed to capture the fundamentals, but even if they did, the signal-to-noise ratio can be very low for a very long time.

In a column last April, I noted that one of Trump's most visible economists, Kevin Hassett, once co-authored a book that claimed to rely on such fundamentals to conclude that the Dow Jones Industrial average should have been three-and-a-half times higher than it was. They were very wrong.

Of course, Hassett continues to beclown himself on Trump's behalf, include saying these words out loud earlier this week (starting at the 4:32 mark of Stephen Colbert's monologue from last night) to explain what might reduce consumer prices: "Imagine that, if oil prices start going back down, because the situation resolves itself, somehow, that you could be looking at ... at inflation close to zero." Sure, why not? If things happen, then they will have happened. And some of those things might have caused prices to go up, so they might go down.

All of which is a fun digression that allows me to note a key distinction. Hassett's attempts in the past to explain what should happen to stock prices are not uniquely fatuous, but he continues to prove to be in a class of his own when it comes to uttering nonsensical gibberish in defense of Trump on all other topics.

As I noted above, I am fully committed to not answering the question of what could possibly explain the record high stock market this week (or any other time). As I conceded earlier, my gut-level auto-predictor did not see this coming. That, however, is the opposite of a surprise. It is all just guesswork. A friend sent me an email asking for my reaction to three possible explanations:

1) Perhaps it is related to the oddity that we talk about record highs in stock indices w/o adjusting for inflation. Energy prices are likely to stay high for a while, which means high inflation [note: or at least continued high prices, even if inflation levels off], which means that prices of stocks could go up while their [real] value stays flat or even declines.

2) Or perhaps it's one of those bad news is good news stories: IMF warns of a global recession; markets expect that means lower interest rates; lower interest rates make stocks more attractive; buy now.

3) People who play the markets are mostly right-wing ~~assholes~~ [stet] who don't realize what complete fuck-ups Trump and his team are, so they're just assuming that the war will blow over because that's what people in their circle believe.

Based on what I wrote earlier in this column, my answer here should surprised no one: "Yes. Possibly. To all three, or maybe only one or two of them. I think. But not with any amount of confidence."

Frustrated yet? What is especially unnerving about all of this is that stock prices matter in a very big way for a lot of people. Personally, my standard of living in retirement is (because most universities do not have traditional defined-benefit pensions) almost entirely dependent on the financial markets. And now that almost no jobs come with old-fashioned pensions, many other people are also indirectly invested in stocks through their defined-contribution plans (like 401(k)'s and IRA's). When Trump brags about the markets, he often tells people that they should be thanking him for how much money they have in those accounts. He is wrong to take credit, but it is true that market prices matter to tens of millions of people in a very real, bread-on-the-table kind of way.

What makes the current situation especially troubling, however, is that overall economic inequality in the US is even worse when it comes to stock ownership. Very, very few of us could get by in retirement without relying on Social Security and Medicare, and when US employment and wage growth are going in the wrong direction -- as both are under Trump -- that means that even fewer people can put money into stocks to benefit from future stock price increases. It also makes it more likely that reduced tax revenues will give Republicans an excuse to scream about deficits and thence to return to their fervent desire to end (or at least deeply cut) America's two most important and successful social insurance programs.

An economy with rising financial markets and falling real activity (like job creation and income growth) is an economy that is necessarily intensifying inequality. We therefore know that we want the economy overall to do well, even as we have no reason to want the markets to fall. Although there is an infuriatingly indescribable illogic to the movements of financial markets -- a fact that should remind us to stop trying to explain market swings -- this all comes down to the most basic of truisms: Broad-based prosperity, not Wall Street feeding frenzies, should be our goal. That might seem obvious, and it should be. Yet here we are.

Growing Wheat or Weed is Economic Activity, and so is Making Booze

2026-04-15T07:00:00.003-04:00

In 1868, Congress passed a law forbidding home distilleries. That law remains on the books today. It is codified as 26 U.S.C. § 5178(b). Last week, a unanimous 3-judge panel of the U.S. Court of Appeals for the Fifth Circuit held that the law is unconstitutional because it exceeds the powers granted to Congress. As I shall explain, in light of a key concession by the government, that holding is arguably correct. As I shall also explain, the concession was a blunder, and while the outcome of the case is defensible, much of the Fifth Circuit opinion is not.

Let's start with the statute's text. As relevant here, it provides: "No distilled spirits plant for the production of distilled spirits shall be located in any dwelling house, in any shed, yard, or inclosure connected with any dwelling house . . . ."

Although codified in Title 26, which is the Internal Revenue Code, and thus arguably an exercise of the power of Congress to impose taxes (about which more in a moment), the law is most readily sustainable as an exercise of the power of Congress to regulate interstate commerce. Hold on, you say: How is a home distillery used to make spirits that need not ever be sold commercially, much less sold interstate, a proper subject of regulation under the Commerce Clause? The answer to that question will be obvious to anyone who has gone to law school since October 1942, when the Supreme Court decided Wickard v. Filburn.

Farmer Filburn objected to a penalty imposed on him for growing more wheat than he was allotted under a quota pursuant to the Agricultural Adjustment Act of 1938. The mere growing of wheat on his farm, he said, was not in any way a form of interstate commerce. The Court didn't care. The more wheat an individual farmer grows, the more the farmer can sell (either directly or via the products of the animals to whom the wheat is fed); and even if the farmer sells none, growing and consuming wheat and products derived from it reduces market demand for wheat.

As with wheat, so with weed. In 2005, in Gonzales v. Raich, the Court rejected the contention that Congress cannot regulate home-grown and home-consumed marijuana pursuant to the Commerce Clause. As Justice Stevens put the point for the majority, the "production" of a commodity for which there is a market is regulable "economic activity" even if the particular objects of regulation do not end up in that market.

And as with wheat and weed, so with booze. Subject to some limits not relevant here that arise out of the 21st Amendment (repealing prohibition), Congress has the power to regulate the distilling of spirits. Just as it can require, per the Fair Labor Standards Act, that people who work in a distillery be paid fairly, and that per the Occupational Safety and Health Act, the working conditions in a distillery meet various safety and health standards, so it can regulate the site of production. All of that follows from the proposition that distilling spirits is regulable pursuant to the Commerce Clause.

Or at least I would have thought before I read the dubious district court opinion that the Fifth Circuit affirmed last week. There, Judge Pittman (a 2019 Trump appointee) held that for intrastate economic activity to be regulable under the Commerce Clause, it must: 1) substantially affect interstate commerce in the aggregate (citing Wickard); (2) serve a comprehensive statute that regulates commercial activity on its face (citing Raich); AND (3) be necessary to make that broader commercial regulation effective (again citing Raich).

But here's the thing. I put "AND" in all caps to emphasize that Judge Pittman made that bit up. There is no Supreme Court case (and, so far as I'm aware, no federal appeals court case either) that says that those three elements are all required in conjunction. Rather, prior cases suggest that they are to be connected by an "or." Because home-distilling of booze is unquestionably economic activity that, in the aggregate, affects interstate commerce, it is regulable by Congress. Full stop. The provision in question should have been upheld as a regulation of interstate commerce.

Yet inexplicably, the government chose not to appeal the Commerce Clause ruling. At first I thought perhaps the Trump Department of Justice chose not to appeal the Commerce Clause portion of Judge Pittman's ruling on ideological grounds. However, the appellate brief waiving the Commerce Clause as a basis for sustaining the law was filed during the Biden administration. And it plainly waived the argument, as the Fifth Circuit said. The appellate brief argued that the plaintiffs lacked standing and that, even if they had standing, the law should be sustained under Congress's power to lay and collect taxes. There was no appeal on the Commerce Clause. That was the blunder to which I referred above.

Accordingly, after concluding (rightly, in my view) that the plaintiffs have standing, the substantive portion of the Fifth Circuit's opinion concludes that the law cannot be sustained on the basis of the power to tax. Before explaining what I think is defensible and what is not in the Fifth Circuit decision on the merits, it's worth asking how, according to the government, the law implicates the taxing power.

The answer is fairly straightforward. When the law was enacted in 1868, it was relatively easy for distillers to evade the tax by hiding their activity. They did so by operating out of their homes rather than in large and obvious distilleries. By making it a crime to operate a home distillery, Congress increased the cost of doing so--which, in turn, made it easier for federal revenue officers to identify distilleries and collect the revenue due from them. This is a classic example of a law that is not itself an exercise of the relevant power (because a prohibition on home distilling is not a tax on home distilling) but that is necessary and proper to the power (because it facilitates the collection of taxes on distilling that occurs elsewhere).

Anybody who has read the broad language of McCulloch v. Maryland (1819) or, much more recently, United States v. Comstock (2010), will recognize the foregoing as a very standard necessary-and-proper argument. Creation of a national bank (in McCulloch) is not itself taxing, spending, or the regulation of interstate commerce, but it facilitates the exercise of all of those powers. Civilly confining a person who is mentally ill and dangerous (in Comstock) is not itself an exercise of the power to say, create a post office, but it is necessary and proper to that power as applied to someone who committed mail fraud and then, while serving a sentence in a federal prison, developed a mental illness that makes him dangerous, because civil commitment facilitates the initial imprisonment, which facilitates the criminalization of mail fraud, which facilitates the post office doing its job. The argument for validity under the Necessary & Proper Clause is much more direct with respect to the home distilling prohibition than with respect to the law upheld in Comstock. Thus, it follows a fortiori from Comstock that the home distilling prohibition is necessary and proper to the taxing power.

So why do I say that the Fifth Circuit decision is defensible? Because while running a home distillery was a means of evading taxation in 1868, it very likely is not today. Modern distilleries produce tens or even hundreds of thousands of barrels of spirits per year. Hidden untaxed output from basement or garage distilleries is thus inconsequential in its revenue impact. Or at least that argument strikes me as plausible, given what I know (which, admittedly, is essentially nothing) about distilling spirits.

Thus, if defensible, the Fifth Circuit ruling relies on a very modest version of living Constitutionalism of the kind acceptable even to most originalists. A law or practice can be constitutional when enacted and for some considerable period thereafter, given conditions at the time, but unconstitutional when conditions change. Thus, although the search-incident-to-arrest doctrine at one time allowed police to search any item found on a person, the Supreme Court carved out a new exception to that principle for mobile phones in Riley v. California, given the unprecedented ability to look into every aspect of a person's life occasioned by a mobile phone search.

Yet while the conclusion that the home distilling prohibition is no longer necessary and proper to the taxing power is defensible, the Fifth Circuit opinion says some other, quite dubious things that suggest it thinks the law was never necessary and proper. Among those dubious statements is its reliance on the Supreme Court's opinion in United States v. Dewitt (1869). There, the government sought to sustain a prohibition on selling one kind of oil as necessary and proper to collecting revenue on sales of other kinds of oils that were taxed. The idea was that forbidding the untaxed oil would increase demand for, and thus revenue derived from, the taxed oil. The Court rejected this argument but in so doing expressly distinguished the very home distillery ban at issue here:

we have been referred to provisions, supposed to be analogous, regulating the business of distilling liquors, . . . but the analogy appears to fail at the essential point, for the regulations referred to are restricted to the very articles which are the subject of taxation, and are plainly adapted to secure the collection of the tax imposed; while, in the case before us, no tax is imposed on the oils the sale of which is prohibited. If the prohibition, therefore, has any relation to taxation at all, it is merely that of increasing the production and sale of other oils, and, consequently, the revenue derived from them, by excluding from the market the particular kind described.

Dewitt thus not only doesn't support the Fifth Circuit's conclusion; it supports the opposite conclusion. There are other problems with the Fifth Circuit's analysis but I won't dwell on them. I'm reserving most of my criticism here for the Department of Justice lawyers in the Biden/Garland era for waiving the Commerce Clause argument on appeal.

Finally, I should make clear that I take no position on the policy wisdom of the federal prohibition on home distilling. A tiny bit of Internet research reveals that there are some serious risks involved in the activity, including explosion, fire, and toxicity. Whether those risks justify prohibition or mere regulation, and whether that should be accomplished at the federal, state, or local level are questions about which I have no expertise or opinion, but, in any event, they were not at issue in the Fifth Circuit case.

--Michael C. Dorf