Dorf on Law

Please Stop Calling the Roberts Court Justices Originalists

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

Professor Larry Solum, in addition to running the influential Legal Theory Blog, is one of the country's leading academic originalists. He very recently had this to say about the Dobbs decision, which reversed Roe v. Wade:

Dobbs does not employ an originalist methodology or reasoning. This is really not subject to reasonable dispute: Dobbs’s reasoning is based on substantive due process and does not engage with the relevant clause, the Privileges or Immunities Clause from an originalist perspective. The outcome of Dobbs might be defended on originalist grounds, but that does not transform the reasons it provides and the methods it employs into originalism.

There are a number of important and fascinating aspects of this description. First, for almost 150 years the Supreme Court has used the Due Process Clause of the 14th Amendment to review unenumerated rights cases like abortion-not the Privileges or Immunities Clause. Professor Solum apparently believes that is an originalist mistake. Leaving aside the hubris of discarding a century and a half of decisions interpreting the Fourteenth Amendment because an academic in 2026 knows more about its original meaning than the justices alive at the time, Professor Solum seems to be saying that there is no originalist basis for substantive due process at all.

Because Professor Solum has chided me personally and others for making claims about the indeterminacy of the litigated Constitution without, according to him, doing the required research, I would be interested in Professor Solum's efforts to demonstrate that as an original matter substantive due process is unwarranted (there is a wide body of literature debating this point, as there is arguing for the Constitution's indeterminacy as an originalist matter).

But more importantly, no matter how one defines originalism, Professor Solum is correct that Dobbs is not an originalist decision. He and his writing partner Professor Randy Barnett made this argument in great detail in a recent law review article. Their key move is that decisions that may reach the correct originalist result based on non-originalist reasoning should not be considered by academics, lawyers, other judges, and the general public as originalist. I agree, and it should follow that decisions that do not use originalism at all to reach a result (and are not based directly on precedent supported by originalist reasoning) are also not originalist, even if the results may be correct as an originalist matter. And, if that is true, then the Roberts Court has decided virtually no originalist decisions, which is a serious problem of government transparency given that five of the current justices self-identify as originalists when they are in fact, like all judges, constitutional pluralists. This hypocrisy, as I've argued before, is simply a mask for GOP and conservative values.

I recently published a long article detailing precisely how the Roberts Court is no more originalist than any prior Supreme Court. When I presented early drafts of this paper publicly, or made similar points in podcasts, etc., the pushback I used to get from originalists was that there were not enough originalists on the Court to allow an originalist justice to write an originalist opinion. But that defense is no longer applicable.

Professors Solum and Barnett argued that Dobbs is not originalist because its tradition-and-history focus, which spans centuries, does not stress either 1791 or 1868 enough to justify the originalist label. But that description is true for virtually every major constitutional law decision the Roberts Court has decided. Although Professors Solum and Barnett argued that Bruen is an originalist decision (it emphatically is not), I will concede the point for purposes of this post. Now let's take a quick look at other areas of constitutional law apart from the Second Amendment that the Roberts Court has drastically altered.

The First Amendment protects the “free exercise of religion.” The Roberts Court has held in a trilogy of cases that if a state decides to financially assist non-religious private schools it must provide the same assistance to religious schools. In these cases, the justices struck down important state policies balancing educational needs with the legitimate church-state-separation concern that taxpayer dollars not be used to support religion--concerns the conservative justices summarily dismissed.

This aggressive federal judicial intervention into how states fund public and private schools cannot be justified by the original meaning of the Free Exercise Clause, and in none of the cases did the conservative justices even make the effort.

The Roberts Court has struck down state and federal laws on free speech grounds with little or no originalist analysis (which if employed would likely have led to different results in most cases). For example, the Roberts Court overturned a state law banning the sale of violent video games to children, a federal law banning the depiction of animal cruelty, and civil liability for the offensive speech of people who protested near a funeral of a member of the armed forces. The Roberts Court has also used the First Amendment to overturn laws relating to commercial advertising and, most infamously, campaign reform efforts to lessen the impact of money in elections.

None of these cases were justified through originalism. Adam Liptak has observed that the “conservative agenda . . . has increasingly been built on the foundation of free speech.” Exactly. The driver of these decisions was ideology, not text, tradition, or history. According to Professor Solum's own reasoning, these cases were not originalist.

And then there is the judicially created fantasy of “color-blindness.” In SFFA v. Harvard, the Roberts Court overruled fifty years of caselaw and held that the Fourteenth Amendment’s Equal Protection Clause requires that university admissions be “color-blind.”

That phrase is nowhere in the Constitution, and this country has never been colorblind. Moreover, as many scholars and historians have observed, the original public meaning of the Fourteenth Amendment cannot stand for color-blindness because government programs enacted at the time included racial criteria.

It is therefore not surprising that the majority opinion in SFFA has no originalist justification and reads like a living constitutionalist homage to broad policy concerns. The only justice who even attempted to support color-blindness with originalist sources was Justice Thomas, and his opinion was so inadequate that no other justice joined it.

In addition to speech, religion, and affirmative action, the Roberts Court’s separation of powers decisions are grounded in the justices’ contemporary ideological preferences. The so-called major question doctrine, for example, which severely limits the ways Congress may delegate critical decisions to the Executive, reflects the justices’ anti-regulatory libertarian agenda, not a sincere attempt to reconstruct the Constitution’s original meaning. And the same is true for all of the cases implicating the so-called Unitary Executive Theory for which the Roberts Court has provided little or no persuasive originalist support.

I could go on and on but you get the point. The failure of the Roberts Court to actually present originalist reasons for its complete re-making of constitutional law since Justice Barrett became the fifth self-identifying originalist to join the Court is remarkable, given the public chest thumping these justices often engage in concerning their alleged originalist bona fides.

Professors Will Baude and Steve Sachs have repeatedly argued that the fact that originalism is done poorly or even not at all does not mean the theory itself is bad. They both claim to be positivists, so that's quite the claim. Additionally, with five self-described originalists on the Court who often vote together and don't need the sixth conservative, who is not an originalist (Roberts) to sustain a five-person majority, there is no excuse for Dobbs, to cite just one example, to not be explained through originalist justifications. And yet the five-justice majority in Dobbs, according to two of the leading academic originalists in the country, failed to do so.

Given that Dobbs is representative of the entire Roberts Court revolution, it is clear that originalism does not work even for self-identified committed originalists. And that is why legal scholars, pundits, lawyers, and even lower court judges should stop pretending the Roberts Court justices are originalist. They most certainly are not. They are simply Republicans and conservatives all the way down.

What If Intelligence Cannot Be Created Artificially (I Ask Innocently)?

2026-06-09T17:14:08.960-04:00

To be clear up front, I am not an expert on anything tech-related, certainly not large-language models (LLM's, commonly miscalled AI, a mistake that I am reluctantly continuing to ape). Had it been up to me, I would have had nothing to do with any of this, and the world would have been a better place all around. Because the companies frantically pushing AI are insatiable, however, we are not given the option of having nothing to do with any of this, which means that we all -- even techno-ignoramuses like me -- are becoming involuntarily knowledgeable about various types of AI-based nonsense.

Last week, I offered my first full column addressing AI, which included a reference to my only previous column that touched on AI at all. In that earlier column (published in October 2025), I brought up AI in the context of trying to understand why financial markets were not falling as a result of Donald Trump's plainly terrible economic policies, most obviously his completely unprincipled and ever-changing tariff regime. Market excitement about AI seemed to explain what was keeping stocks inflated. More than seven months later, and with the added negative effects of Trump's decision to go to war with Iran, the AI-as-market-flotation-device story still seems to be true.

In last week's column, however, the point that I was making had next to nothing to do with financial markets. Instead, I was having some fun relating a few seemingly low-stakes but amusing AI errors, one of which came from that October column. The problems with AI, as I described it last week, are not limited to the high-end concerns about how unregulated AI systems could make human labor obsolete -- or even destroy the human race entirely, which would at least make the unemployment rate less of a concern. It is all a lot more boring than that.

Although it is an admittedly imperfect analogy, I wrote that AI systems replicate something very similar to the fact-law distinction that most readers of this blog will recognize from their legal training. And the reason I went back to the well with my little example from last Fall is that it showed AI making a clear error of fact. In that case, Google's involuntarily imposed AI results reported the score of a football game incorrectly (both the score and the winner/loser). And because that is one of the easiest facts to "scrape" from the internet, it raises the question of whether AI can be trusted with anything, even the non-nefarious and non-dystopian things that it is supposed to do perfectly. If it cannot even collect data competently, can it do anything?

There is more to say about this, of course, which requires picking up on one of the other examples that I discussed in last week's column. This inquiry leads in an interestingly different direction -- still damning for AI, but for an unrelated reason. In that example, someone asked AI this question: "How many days of the week have the word 'fish' inside their spelling?" I copied some (but not all) of the silly answers that the AI system provided, one of which was this bit of fun: "Only one day of the week has a 'fish' in it: Sunday. If you look at the spelling of the days, only Sunday contains the word 'day' (which is a type of fish)!"

I suppose that there might be some online source that says that there is a type of fish called the day, which might (and I stress might) absolve AI on the factual question. Even if that were true, the more obvious error is the claim that the word "day" only shows up in Sunday and not in any of the other six days of the week. Is that equivalent to a pure factual error, as in the football score example above? Maybe not, because it might (and I stress again might) be that sorting out how many days have the word "fish" inside them requires a series of logical inquiries that more closely reflect logic (law) and not fact. Even with that extraordinarily generous excuse, however, it is obviously embarrassing.

What is the different direction that I promised two paragraphs ago? The friend who told me about this amusing question and answer told me that they saw it on Bluesky here, although in that one the AI answer was "saturfish." A commenter on that post added this zinger: "When you keep doing this it feels like arguing with a drunk friend who is entirely wrong about something but won’t give up." That is excellent, but knowing that this has become its own online meme caused me to wonder whether the question itself might somehow have been a trap for AI.

"A trap?" you ask. Good question. Thinking all the way back to the olden days when Google's search engine itself was brand new, one of the first bits of online mischief -- which was apparently the inspiration for the term "Google bomb" -- was Dan Savage's successful effort to make the first hit when searching for right-wing former Republican Senator (and multi-failed presidential candidate) Rick Santorum a particularly X-rated graphic description of a substance "that is sometimes the byproduct of anal sex."

This was in response to Santorum's infamously homophobic comments, in particular this: "In every society, the definition of marriage has not ever to my knowledge included homosexuality. That's not to pick on homosexuality. It's not, you know, man on child, man on dog, or whatever the case may be."

Savage's innovation involved gaming the Google algorithm such that his "definition" of Santorum would show up first in search results. Posting such a definition online was easy, even back then. The hack, however, was not in any way high-tech. Savage simply publicized the definition and encouraged people to search for it, which moved it to the top on more than one search engine.

I have no idea whether the fish-as-day thing is a deliberate prank, although it has the whiff of mischief in it. What makes even that possibility interesting here is that pranking AI does not even require coordinating with people to search en masse for a particular site or set of words. Because AI is not in fact intelligent, it simply pulls "information" from everywhere (scare quotes to emphasize the false content), which it then includes as part of its information base. Someone could (and maybe did) post something saying that there is a kind of fish called a day, and we would be off to the races.

This problem showed up most famously when one of the big AI bots went full-on Nazi (the "MechaHitler" insanity) last summer, but the general problem had been noticed long before then. AI systems uncritically feed on internet content, and because so much of that content is driven by terminally online bros pushing sexist, racist, White supremacist, and violent chatter, AI systems "learn" to be awful in a matter of nanoseconds. Readers who are interested in the Mecha thing should take a look at this award-winning, 39-minute online documentary: "If you remember one AI disaster, make it this one."

So the problem is not only that AI cannot even get basic facts right, or that it has no way to process information in a way that is going to sort out reality from lies. It is that evil content dominates, and an unbiased AI system will process that content and reproduce evil.

To end on a humorous note, however, I can share another revealing AI moment. A friend (who clearly has too much time on his hands) submitted to Gemini this purely hypothetical request that had nothing to do with me:

Write a track about a man named Neil who moves from Washington, DC to Gainesville, FL to Amsterdam, the Netherlands, to Toronto, Ontario, to Dublin, Ireland, to Pittsburgh, PA, and finally to Chicago. His goal in all of these moves is find the perfect neighborhood pub that also serves vegan burgers. The style should be 90s power pop with a strong beat.

Note that the Gemini site includes this at the bottom of the page: "Gemini may display inaccurate info, including about people, so double-check its responses." That is a naked confession that another commentator's rhetorical question (which I reproduced in last week's column) is spot on: "If you presented a calculator to me and said, 'This'll do any calculation you want, but it'll get a bunch wrong, and you don't know how often, and you don't know which ones will be wrong, so you have to manually check them all anyway,' isn't that useless?"

In any event, the result of my friend's request was indeed in a 90's power-pop style, and it was even somewhat catchy. What I noticed, however, was that even when its lyrics sort of made sense (which was by no means a given), Gemini chose the most superficial things possible to identify places. Here is the first stanza and the refrain:

The Hill was humming in a tailored suit,
But Neil was looking for a different route.
Trading the marble for the Florida heat,
And gator lives where the pulse hits the street.

He checked the specials on a dusted street,
He checked the specials on a dusty board.
A flavor profile he could finally afford ... finally affooooord!

Oh give him a counter where the regulars go,
And a patty made of greens and a toasted glow.
From the Atlantic to the canals' edge,
He's living his life on a plant-based ledge.

It in no way gets better, which means that I am doing everyone a favor by stopping there. But what to make of it? It was in English, and it responded to the prompts by grabbing ideas from the internet that it apparently was programmed to use as stand-ins for places. Washington DC is "The Hill," "a tailored suit," and "marble." Florida is "heat" and "gator." Amsterdam is canals. The same pattern shows up in the later lyrics.

But even a quick perusal of the words above leads to a lot of head-scratching. I had no idea that gators live where the pulse hits the street, and I have no clue why Florida is associated with a dusted street, a dusty board -- or a dusty anything. The most humid cesspool in the country is now dusty? What is a patty with "a toasted glow"? Going with plant-based instead of vegan is obviously sensible, but what is "life on a plant-based ledge"? I mean, we have all heard of living on the edge, but not the ledge. And plant-based is not a sensible modifier for that puzzling ledge.

Maybe AI will get much better at all of this over time, but maybe not. Just as Donald Trump's replacement for the Affordable Care Act is still and forever will be two weeks away, and Elon Musk's completely automated cars are always five years in the future, it could be that AI will continue to be simply bad. It is, at the very least, not obvious that additional programming could make it choose nontrivial -- to say nothing of accurate -- short-hands for various places. If you knew one of those annoying people who constantly referred to New York as "the city that never sleeps" and gave him "the Big Apple" and "the city so nice they named it twice," he could probably use those three options interchangeably. That would not, however, make him interesting.

As I noted above, I have chosen in this column not to focus on the existential risks that AI evidently poses. It could indeed be dangerous even while it is also over-hyped, inaccurate, and trite. In any case, reaching the point where it no longer produces fake photos of people with 7-fingered hands will not fix the things that stop it from being useful, insightful, or even mildly interesting.

- Neil H. Buchanan

Another Immodest Proposal: Ratify the (Original) First Amendment

2026-06-08T07:00:00.000-04:00

Major Correction: Below you will find a blog post in which I made a boneheaded reading comprehension error. I'm leaving it up because, having in the past criticized others for hiding their errors, I think it only fair that I own mine. As you'll see, in what follows, I read the word "more" in the last sentence I quoted to mean "less," which is pretty stupid. Thus, my assertion that ratifying the original First Amendment would result in a House of Representatives with over 6,500 members is not true--or rather would be true only if Congress agreed to increase its own size to that extent, which is effectively impossible. Having said all of that, I think there is merit in increasing the size of the House by statute, although there are of course political obstacles to doing that. Okay, here's my original blog post:

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Whenever I hear someone say that "the First Amendment is first for a reason," I'm tempted to respond: "Yes, and the reason is that the originally proposed first amendment was never ratified." In 1789, the requisite supermajority of both houses of Congress proposed twelve amendments. The states ratified proposed amendments three through twelve, which became what we know as the first ten amendments or the Bill of Rights, but the other two fell just short.

There matters stood until the 1980s, when a University of Texas undergraduate got the idea that it wasn't too late to ratify what had originally been proposed as the second amendment. He promoted his idea and in 1992 enough state ratifications had been obtained to make it what we now know as the Twenty-Seventh Amendment. It prevents Congress from giving its members a raise (or decreasing their pay) without an intervening election occurring before the change goes into effect.

But what about the original first amendment ("OFA")? Here's its text:

After the first enumeration required by the first article of the Constitution, there shall be one Representative for every thirty thousand, until the number shall amount to one hundred, after which the proportion shall be so regulated by Congress, that there shall be not less than one hundred Representatives, nor less than one Representative for every forty thousand persons, until the number of Representatives shall amount to two hundred; after which the proportion shall be so regulated by Congress, that there shall not be less than two hundred Representatives, nor more than one Representative for every fifty thousand persons.

Given the precedent of the Twenty-Seventh Amendment, it stands to reason that a campaign to persuade states to ratify the OFA, if successful, would render it the Twenty-Eighth Amendment or, if you think that the ERA was properly ratified, the Twenty-Ninth Amendment. (Whether the ERA was properly ratified is itself an interesting question about which I've written in Verdict columns here and here.)

If the OFA were properly ratified, using 2020 census data for the US population for our calculations, we would end up with a House of Representatives with over 6,500 members. That is way larger than the legislature of any other constitutional democracy. Counting both houses of bicameral national legislatures, the largest such combined legislature in a democratic country is the UK, which has 650 members in the House of Commons and roughly 800 persons eligible for the House of Lords. However, I'd discount the House of Lords, given that its members aren't elected. Doing so gives France the top spot, with over 900 total members of both legislative chambers. Even counting legislatures of nondemocratic countries, ratification of the OFA would result in the US Congress dwarfing all other national legislatures: China's National People's Congress has just under 3,000 members, which is less than half the size of the House under the OFA.

Would a 6,500-plus-member House have advantages over our current 435-member House? Absolutely. The most obvious is the one that James Madison had in mind when he proposed the OFA in the first place. A House member who serves 50,000 constituents will be much closer to those constituents than one who represents three quarters of a million constituents, as the typical House member currently does.

There is another advantage: It is more difficult to engage in political gerrymandering with the smaller districts that the OFA entails. In that sense, the OFA is an alternative to another proposal that I recently discussed: elimination of the statutory requirement for single-member districts and a shift to party-list voting with proportional representation. Like that proposal, adoption of the OFA would also reduce the opportunity for racial gerrymandering without any express reliance on race.

That is not to say that ratification of the OFA would have no drawbacks. The obvious one is logistical: The existing congressional facilities are inadequate to a body with fifteen times the number of current members. In addition, in a legislature that large, power would effectively be wielded by party leaders, thus canceling out some of the benefits of greater closeness to the people--except perhaps with respect to constituent services.

Some readers might at this point be wondering why I'm discussing the OFA. After all, it doesn't require a constitutional amendment to increase the size of the House, which has been capped at 435 by a statute enacted in 1929. Congress could, through ordinary legislation, increase the size of the House with a simple statute. Moreover, if it did so, it could double the size of the House or increase it by any other amount. It would not be obligated to increase the House to an unwieldy 6,500+ members, as required by the OFA. And ordinary legislation is easier to enact than a constitutional amendment. So shouldn't that be the path?

In theory, yes, but in practice, members of Congress are extremely unlikely to vote to dilute their own power and prestige by substantially increasing their number. They each have a personal interest in keeping the House small.

Ordinarily that would also rule out a constitutional amendment, which requires two-thirds of each chamber to be proposed. However, the OFA has already secured the two-thirds of each chamber necessary to send it to the states. It did so in 1789. Resurrecting the OFA in the same manner that the original Second/Twenty-Seventh Amendment was resurrected would be a way of bypassing Congress. All we need now is some enterprising undergraduate!

-- Michael C. Dorf

The Further Criminality of the J6 Rioters is Wholly Unsurprising Given the Roots of Political Violence

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

As reported yesterday in The NY Times and likely dozens of other places, a new study by Lawfare found that roughly one in every sixteen of the January 6 rioters who were granted clemency by President Trump have "been arrested for and charged with—and in the vast majority of cases convicted of—other crimes, at least some of which were actively enabled by the clemency actions." The Lawfare study is the result of painstaking research. By sifting through records in multiple jurisdictions, the study's author, Katherine Pompilio, found more than twice as many instances of re-arrest than had previously been reported. Even so, the updated figure is probably an undercount, as she herself told the Times.

Who could have guessed? The short answer is: anybody who knows anything about political violence. Here's most of the abstract of a 2020 paper:

One of the most consistently supported conclusions in criminology is that prior criminal record predicts subsequent criminal behavior. This connection has been observed in dozens of research projects and is, along with the severity of the offense, the most commonly used criterion for making critical sentencing, parole, and probation decisions. But somewhat surprisingly, there is little empirical research on the connection between prior criminal record and participation in extremist political violence. The findings of the current study show that pre-radicalization criminal behavior, violent or nonviolent, is the single strongest non-ideological predictor of post-radicalization violence among U.S. extremists. We also find that the criminal backgrounds of U.S. extremists vary considerably depending on their ideological affiliations. Individuals on the extremist far-right, especially those motivated by white supremacist views, are substantially more likely to engage in crime prior to radicalizing than are individuals associated with other ideologies. We also find that U.S. extremists rarely specialize in specific crime types . . . .

Although the 2020 study looked at prior criminality as a predictor of future political violence, there is every reason to conclude that there is continuity in both directions--that is to say that just as general criminality predicts political violence, so political violence predicts general criminality. The finding that most criminals--including people who engage in political violence--are generalists supports this inference. So does the fact that the people who engage in political violence are much more likely than the general population to have previously been criminals. The fact that they committed past crimes of any sort predicts that they will commit future crimes of all sorts.

Meanwhile, the ideologically asymmetrical finding is telling. Roughly a third of the January 6 defendants had links to far-right extremist groups like the Proud Boys and Oath Keepers. Meanwhile, the vast majority were white. Putting those facts together, it was entirely predictable that pardoning or issuing clemency to the January 6 rioters would mean pardoning a great many people who would go on to commit additional crimes.

Could Trump have been expected to have known any of that? It's not as though he reads anything. Even so, one would think that somebody close to Trump--such as his Yale Law School-educated Vice President--might have worried that pardoning J6 rioters who then committed additional violent crimes would be a bad look. And indeed, a few days before Trump's 2025 inauguration, J.D. Vance told Fox News that people who committed violence shouldn't receive pardons. However, according to an amazing Axios story from January 22, 2025, Vance wasn't actually against clemency for violent rioters but he thought Trump wouldn't want to issue them pardons because it would look bad. At the time, there was an internal debate among the people who would soon be in the White House about whether to withhold clemency for the most violent of the J6 rioters but the debate ended when Trump impetuously declared: "Fuck it: Release 'em all."

Given the level of incompetence in the current Trump administration and the fact that in the week leading up to Trump's 2025 inauguration, his staff were preparing a great many executive actions, it is possible that no one bothered to think about whether pardoning violent J6 rioters would not merely look bad but would actually lead to increased criminality. If so, then we might say that the administration was recklessly indifferent to the crimes the pardons would enable.

There is, however, a darker possibility: that Trump wanted the pardons to go to everyone not in spite of the fact that he would thereby reward and empower violent criminals but because pardoning "'em all" would reward and empower violent criminals. Until an authoritarian regime consolidates its power, it cannot fully rely on the regular security forces. It takes time to build up the capacity of an official Praetorian Guard. In the meantime, it is very useful to be able to call upon a standby irregular force of brownshirts. Indeed, such a force can prove useful even after the dictator has control over the official security forces, which is why these irregulars tend to persist in authoritarian regimes, so long as the dictator keeps them sufficiently under heel that they don't assert their power against him.

Finally, and as an aside, I note that the block quote above was from a study published in June 2020 by the National Institute of Justice, which is housed within the Department of Justice. It's a reminder that during Trump's first term many parts of the government continued to operate more or less normally. It is difficult to imagine the current DOJ publishing a paper that includes among its findings the fact that right-wing extremists and especially white supremacists are most likely to engage in political violence. Such research would likely be nixed as woke if the ideological asymmetry was offered as an initial hypothesis or buried if it was a finding that emerged from the data. Indeed, it's a little bit surprising that (at least as of today), the report still exists on a DOJ website.

-- Michael C. Dorf

How Naive Are Oil Traders?

2026-06-04T11:43:49.471-04:00

I do not pay much attention to day-to-day fluctuations in market prices for stocks, bonds, or commodities. Nonetheless, just by reading the regular news over the last several months, it has been difficult to miss the movement of oil prices. Much of the political news coverage focuses on gasoline prices--because apparently Americans who are largely unconcerned about an authoritarian government that scapegoats and persecutes immigrants, deploys the tools of government to enrich the president and persecute his critics, and cripples the government's ability to respond to natural disasters, public health crises, and other urgent problems, will be moved to object to its unlawful use of military force if that makes it more expensive to fill up their gas tanks and purchase other items affected by higher energy costs.

Because gas prices move more or less in tandem with market oil prices, the news coverage also frequently includes reports of those market prices going up or down. Those prices remain higher since Iran responded to the attacks by the United States and Israel by closing the Strait of Hormuz, which is sensible enough, but I'm interested in the interim fluctuations we've seen over the last several months in response to successive bouts of optimism and pessimism spurred by, respectively, an announcement (usually by President Trump) that an agreement to re-open the Strait is imminent and either a contrary announcement (usually by Iran) or renewed fighting.

With the assistance of Claude (and thus the risk that the output is a hallucination notwithstanding my having spot-checked it), I've created a little graphic to show the shifts:

The details are not especially important. The key point is that oil prices have repeatedly fallen based on announcements of a supposedly imminent deal, only to increase again when it becomes clear that Trump was . . . how to put this? . . . full of shit. The question is why. Commodities markets are supposed to be efficient, so the movement of prices in response to announcements of an imminent deal implies that such announcements provide genuinely useful information, when they pretty clearly don't. What's going on?

One possibility is that markets are not in fact efficient. There is a ton of evidence for this possibility--that is, against the hypothesis that financial markets (including commodities markets) are perfectly efficient. But I doubt that the general inefficiency of commodities markets in capturing all information fully explains the phenomenon we see illustrated above.

What we are observing is a kind of naïveté among enough oil traders to affect market prices. And to be clear, that must mean a lot of such traders, because a small number of traders who naively believe what Trump claims about an imminent deal cannot move markets. More savvy investors would see these MAGA-traders selling oil futures on news of an imminent deal and take advantage of these fools by buying low, thereby driving the price back up. All of that should happen so quickly as not to register in daily closing prices.

The good news here is that over time, the price movements appear to get smaller, so we're seeing some combination of fewer people being taken in by Trump and those who do take him seriously giving less weight to his statements. The mystery is that we're seeing anybody give any weight to Trump's claims. One wonders whether the same oil traders who see Trump posting on TruthSocial that an Iran deal is imminent and immediately sell their oil contracts also think that any day now Trump's "concepts of a plan" for a terrific Obamacare replacement will morph into a full plan and be announced in detail.

Postscript: In the foregoing, I have referred to "efficient" financial markets. As readers of this blog may recall, Professor Buchanan's academic work (including some of it co-authored with me) contends that "efficiency" is an incoherent concept because an allocation of resources is only efficient or inefficient relative to some arbitrarily specified baseline. I am not saying otherwise here. The notion of efficiency in financial markets is more limited: it means that prices on financial markets perfectly reflect all available information relevant to predicting future returns--so that no one can outperform the market. This is known as the efficient capital markets hypothesis (although it has been advanced with respect to all financial markets, including commodities markets, and not just those for capital assets).

-- Michael C. Dorf

Admittedly Confusing Click Bait: Is AI Better than the CIA?

2026-06-03T11:51:57.344-04:00

[Update: A reader who has reason to know wrote to tell me that the CIA was/is not as reliable re gathering facts as I indicate in the column below. Or, to paraphrase myself: “Actually, the CIA ain’t no CIA, either!” I’ll accept that as a friendly amendment.]

I must begin with a confession: It was only after I wrote the headline for this column that I noticed that the "I" in both acronyms stand for "intelligence" (an oversight that caused me to question mine). Be that as it may, there is in fact a potentially useful comparison between Artificial Intelligence (AI, which should in fact be referred to as LLM's, for large-language models, but I am not going to fight that battle here) and the Central Intelligence Agency. Trust me that this column eventually includes some very amusing content, but it does begin with seriously bad news.

Back in the 1970's and '80's, the CIA was rightly under political pressure for its many foreign policy disasters. It had, for example, been responsible for decades of coups d'etat in Iran, Chile, and elsewhere. Its nefarious activities went far beyond those relatively famous examples, however, to the point where there is a very long entry on Wikipedia titled "List of CIA controversies." It is a depressing read.

Even so, one of the most useful data sources available throughout that time was called the CIA World Factbook. It provided, according to another Wikipedia page, "almanac-style information about the countries of the world." Even though I am the last person to defend the CIA, I recall that the Factbook was very useful when I wrote a short law review article comparing US health outcomes with those in other countries. I also discovered that it was also a very good source for apples-to-apples comparisons of public debt and other economic data in countries around the world.

Why bring that up here? I will answer that question momentarily, but first it is important to share news that most definitely was buried under the avalanche of other atrocious news in 2026. The Factbook's Wikipedia page now includes this information in the introductory section: "On February 4, 2026, following the restriction and closure since 2024 of other government-funded information websites, the CIA announced, with no warning and no explanation, that The World Factbook was discontinued." The CIA's website on that date published a short page with this title: "Spotlighting The World Factbook as We Bid a Fond Farewell." Again, no explanation is given, only saying that the publication "has sunset."

So as a threshold matter, the axing of the CIA World Factbook is very bad news indeed, especially as it is part of the Trump Administration's broader attack on reality -- as in, facts. It is the kind of thing that makes the Project 2025 people who are working with Trump so dangerous, because it is yet another example of how many ways in which the federal government is being destroyed and warped to serve a larger, anti-democratic agenda. Facts be damned, so they are making those damned facts disappear. And I would not have even noticed this particular move if I had not thought about the Factbook in the context of this column.

Which brings me back to that question of why I even thought to mention the Factbook today at all. During the years of the CIA's most extreme notoriety, I heard a commentator describe the CIA's fact-gathering operations in a surprising way. That agency, he said, was absolutely unreliable whenever it came to analysis of facts, advocating policy choices, or anything that involved judgment and good-faith reasoning. Even so, it was absolutely the gold standard when it came to collecting data. The best way to think about it, this long-forgotten commentator put it, was to say that we could trust the CIA whenever it made a factual statement, but we should never trust it when it offered an intelligence assessment or -- heaven forbid -- an action plan.

So that is/was the CIA, or at least a usefully simplified way to think about its two-pronged work. For those readers who are lawyers, think of this as the fact-law distinction, where the CIA absolutely nails the first part of every legal brief but then goes completely off the rails in the second part with a Samuel Alito-like rant that no one should take seriously.

How is that like, or not at all like, AI? This is where things become amusing, because AI's boosters claim that this new technology can do both of those things amazingly (literally super-humanly) well, but it cannot even get the facts right. And that is a monumental problem, because the one thing that even a skeptic might have thought AI could do well is gather facts. Indeed, the technology is built on an ability to "scrape" facts from the internet quickly and supposedly accurately, which means that even though it is so often used to create Uncanny Valley-like slop or offers bad arguments, at least the facts should be correct.

As an aside in a column this past October, I noted one example of an obvious failure on AI's part when it comes to basic facts. I had entered an internet search regarding college football, where a coach had been fired because of a disastrous record of 4 wins and 21 losses against Top 10-ranked opponents, but I could not remember those four victories. I did not want an AI answer, but Google had installed an impossible-to-delete AI feature at the top of its searches, and the answer that it gave included one that was simply wrong. The claim was that that coach's team had beaten Michigan by a score of 21-17 in 2023, which just happens to be the year in which Michigan went undefeated and won the national championship. Oops.

I should add that there might have been more such errors, but I had no reason to check them. And that is the core of the problem. As one podcaster put it recently: "If you presented a calculator to me and said, 'This'll do any calculation you want, but it'll get a bunch wrong, and you don't know how often, and you don't know which ones will be wrong, so you have to manually check them all anyway,' isn't that useless?"

I happened to know that that Michigan score had to be wrong, but most people would never notice. So it is important to continue to remind ourselves that a randomly-wrong source is truly useless, even -- or especially -- when it is unpredictably wrong about facts.

AI ain't no CIA.

What is even worse is when an AI-generated answer is completely confusing. I recently needed to work through some time zone adjustments when a colleague in Europe sent me some proposed meeting times in CET. I knew that CET is Central European Time, and it is one time zone to the east of GMT. But this is summer time, and even the home of GMT (the UK) uses daylight savings time, or BST -- British Standard Time -- which is one hour later than GMT. My colleague specified CET, not CEST or CEDT (which seemed like the two candidate for summer: Central European Summer Time or Central European Daylight Time).

This should, I thought, be as simple as saying that, for example, Chicago in the summertime is on what amounts to Eastern Standard Time. I thus entered this question into the search engine: "Is CET the same as BST?" The AI answer was: "No, CET (Central European Time) and BST (British Summer Time) are not the same." But it went on: "BST is 1 hour ahead of GMT (UTC +1)," which is true, and then added: "CET is UTC +1." So wait, does that not mean that CET is the same as BST? But the answer continued: "Because of this, BST and CET are usually the exact same time (e.g., 12:00 PM in London is 12:00 in Paris. However, the UK switches to GMT in the winter, and Central Europe switches to CEST (UTC +2) in the summer. The differences depend on the time of year."

Got it? No, you are not insane. This is self-contradictory gibberish. And as an even better (and genuinely hilarious) example of nonsense, a friend recently sent me the results of a search based on this question: "How many days of the week have the word 'fish' inside their spelling?" Part of the AI-generated answer:

Exactly three days of the week have the word "fish" hidden inside them when spelled out:

• Tuesday
• Wednesday
• Thursday

The other four days (Monday, Friday, Saturday, and Sunday) do not contain the word "fish" at all.

Another part:

Two days of the week literally contain the word "fish": Tuesday and Saturday (which both contain the letters f-i-s-h).

And another:

Only one day of the week has a "fish" in it: Sunday. If you look at the spelling of the days, only Sunday contains the word "day" (which is a type of fish)!

Again, AI ain't no CIA. Luckily, financial markets are not in the midst of an AI-fueled bubble. This will definitely end well.

- Neil H. Buchanan

Pigs, Dogs, and Nicholas Kristof

2026-06-02T07:00:00.000-04:00

On Saturday, New York Times columnist Nicholas Kristof wrote an essay condemning the "Save Our Bacon Act," which passed the House and is currently pending before the Senate as part of the Farm Bill. Save Our Bacon would pre-empt state laws like California's Proposition 12, which establishes minimal welfare standards for the raising of pigs whose body parts are sold in the state. In National Pork Producers Council (NPPC) v. Ross (2023), the Supreme Court upheld Prop 12 against a dormant commerce clause challenge. However, a ruling either for or against a dormant commerce clause claim sets the boundaries of what states may do only absent congressional action (i.e., while the congressional power to regulate interstate commerce lies dormant). Thus, Congress has the power to supersede NPPC and allow nationwide what Prop 12 banned in California: the sale of pork products from pigs who were born to sows confined to gestation crates in which they lack the space even to turn around.

Along with Kristof, I hope the Senate rejects Save Our Bacon. As I noted when NPPC was decided, it reflects a small but significant step towards the recognition of animal welfare as a worthy concern of the law. Here's what I wrote then in a Verdict column:

Justice Gorsuch’s lead opinion in NPPC . . . treats with respect the pigs whose fate is the core concern of the challenged provision of Prop 12. Although the dominant leitmotif of the opinion is that state legislatures and Congress are better positioned than judges to weigh the benefits and burdens of measures like Prop 12, Justice Gorsuch repeatedly acknowledges that California is entitled to pursue its moral interest in addressing cruelty to animals.

As I also noted in that column, NPPC was not the first case in which the Court has shown respect for the interests of animals. I pointed to a concurrence by Justice Blackmun in Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah in 1993 and to Justice Alito's dissent in United States v. Stevens in 2010.

It's notable that whether particular justices express sympathy for the plight of animals does not appear to break down along conventional left/right ideological lines. Depending on the case, both conservative and liberal justices can be found expressing sympathy (and casting their votes based at least in part on that sympathy) for animals. That's true with respect to non-judicial actors as well, as I observed in an essay in January in response to the announcement that the Department of Health and Human Services under Trump and RFK Jr. is working to end federally funded animal testing.

Kristof's column takes note of the same phenomenon more broadly. He writes that "at a time when Americans can’t seem to agree on anything else, animal rights are a rare issue on which many conservatives and liberals periodically find common ground."

I do not disagree with the substance of that claim, but I do have an issue with the phrasing. Support for Prop 12 or opposition to Save Our Bacon reflects at least a minimal concern for animals, but it does not reflect a view in favor of what I would call "animal rights." If someone took the view that certain disfavored human beings who had committed no crimes could be imprisoned from infancy and then slaughtered as soon as they reached maturity but were entitled during that time to have access to the prison yard rather than being constantly confined to their cells, I doubt that the person taking this view would be described as supporting "human rights."

To be sure, we can think that some class of beings have a right to avoid some evil fates but not all such fates. For example, it is not an oxymoron to say that people on death row retain rights. One such right that the Supreme Court has at least nominally recognized is the right to avoid cruel methods of execution. I say "nominally" because the Court has in fact allowed executions to proceed via methods that posed the potential for inflicting excruciating suffering--potential that has far too frequently been realized.

Still, it is not logically incoherent to speak of the minimal "rights" of animals who are raised for food. Nonetheless, there is a great deal of incoherence in practice. Nicholas Kristof himself illustrates the proposition. As he frequently mentions when discussing animal welfare, Kristof grew up on a farm. He tends to romanticize how the animals on that farm were treated, feeding the narrative of happy hens, pigs, cows, and other animals whose lives are cut short by one bad day, even as the agony of that one bad day is mitigated by thoughtful killers. Kristof sees himself as standing up for traditional animal agriculture as against the big bad factory farms.

Factory farms are indeed big and bad, but the alternatives (such as the practices permitted by Prop 12) are not much better. They are more accurately described as slightly less awful.

Moreover, even were we to grant Kristof's assumption that there is a world of difference between the farm of his youth and the factory farms of today, his argument goes much further than he or his audience is prepared to accept. He concludes his essay on Saturday this way: "think of your dog enduring what pigs face, and you realize that the moral cost is incalculable."

That's just right. Pigs raised for pork in the United States are typically slaughtered at about six months of age, even though their natural lifespan is roughly the same as that of a dog. If you think of your dog--really your six-month-old puppy--being slaughtered and eaten, then you realize the full moral cost of not simply the miserable conditions in which pigs are raised for food but the fact that they are raised for food at all.

We have been here before. Consider a letter to the editor that appeared in the New York Times in 2013 in response to a 2013 column by Kristoff in which he acknowledged his own hypocrisy even as he touted the progress that he saw being made towards better treatment for animals by the food industry:

To the Editor:
I was pleased to read Nicholas D. Kristof’s acknowledgment that eating meat is inconsistent with a professed concern for the lives and well-being of animals. Less convincing is his suggestion that consuming eggs labeled “cage free” or pork labeled “crate free” represents progress.
I hope that Mr. Kristof comes to realize that “humane” animal products do not exist. He and others can then make the truly compassionate choice to become vegan, a step that authentically reflects the ethical intuition that animals matter.
SHERRY F. COLB
Falmouth, Mass., July 28, 2013
The writer, a law professor at Cornell, is the author of “Mind if I Order the Cheeseburger? And Other Questions People Ask Vegans.”

Plus ça change, plus c'est la même chose.

-- Michael C. Dorf

Could Thomas and Alito be Right About SCOTUS Original Jurisdiction in State-versus-State Cases?

2026-06-01T07:00:00.000-04:00

The state of Florida attempted to sue the states of California and Washington, alleging that the latter two permit undocumented immigrants to obtain commercial driver's licenses even if they cannot read English. Article III of the Constitution grants the Supreme Court original jurisdiction of such state-versus-state cases, and a federal statute, 28 U. S. C. §1251(a), makes such jurisdiction exclusive of the lower federal courts. Nonetheless, last week, the Supreme Court disallowed the lawsuit in a one-sentence order: "The motion for leave to file a bill of complaint is denied."

That order prompted a dissent by Justice Thomas, joined by Justice Alito. They contended, as they had in prior state-versus-state cases in which the Court had likewise denied leave to file, that the Court's doing so was unauthorized. Indeed, the Thomas dissent quoted Chief Justice John Marshall in Cohens v. Virginia: "We have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given." For those in the know, them's fightin' words because the very next line in Cohens is this: "The one or the other would be treason to the Constitution." Justice Thomas didn't quote that line, but his colleagues in the majority would have known that he and Justice Alito were effectively accusing them of treason.

That's pretty strong stuff. Are Justices Thomas and Alito right? Much as it pains me to say so, the answer is mostly yes.

Let's start with some basics. Anyone who has sat through one semester of constitutional law will recall that the underlying holding of Marbury v. Madison is that Section 13 of the Judiciary Act of 1789 was unconstitutional insofar as it gave the Supreme Court original jurisdiction beyond what is conferred in the Constitution's Article III. But while Congress cannot add to the Court's original jurisdiction, it can confer concurrent jurisdiction on the lower federal courts in cases that also fall within the Supreme Court's original jurisdiction. In upholding such concurrent jurisdiction in Ames v. Kansas (1884), the Court pointed to practical considerations and a long unbroken practice.

Ames held that Congress can choose whether to make any category or sub-category of the Supreme Court's original jurisdiction exclusive or concurrent. Where it makes such jurisdiction concurrent, it is hard to argue against the Supreme Court's exercise of discretion to decline jurisdiction and allow a case to be resolved by the lower courts.

To be sure, rejecting original jurisdiction in the Supreme Court under any circumstances arguably violates the Cohens admonition. After all, concurrent jurisdiction is still jurisdiction, and if Marshall is to be taken literally, there is never discretion to deny it.

But Marshall should not be taken literally. As a general matter, the scholarship of the late great David Shapiro offered positive and normative grounds for recognizing a sound discretion in all courts to decline jurisdiction in some cases. And as a practical matter, where there is concurrent jurisdiction, cases are better handled if filed originally in federal district court than in the Supreme Court, which is not well suited to take evidence. Even when the Court does exercise original jurisdiction, it typically does so through a kind of cheat: it employs a special master to take evidence and prepare a report to which it usually gives substantial deference.

However, state-versus-state cases do not fall within the concurrent jurisdiction of the lower federal courts. As the plain language of §1251(a) indicates, and as the Supreme Court confirmed in 1992 in Mississippi v. Louisiana, the only place one state can sue another state is in the U.S. Supreme Court. By contrast with a concurrent jurisdiction case, denying leave to file in the Supreme Court in such a case leaves a state plaintiff state with no forum in which to pursue its cause. How can that be justified?

That's the question posed by Justices Thomas and Alito. The majority doesn't have an answer. Can we supply one for them?

The short answer is no. The longer answer is a bit more complicated.

Sometimes there will be unstated but nonetheless solid grounds for denying jurisdiction. In Florida v. California and Washington, for example, a majority of Justices may have concluded that Florida lacks standing because any injury to the state of Florida (for example, by a non-English reading truck driver from California causing an accident in Florida) is too speculative.

Or a majority may have thought Florida's case insubstantial on the merits: although Justice Thomas in dissent cited two Trump administration regulations regarding whom states can make eligible for commercial driver's licenses, a majority of the Court might have thought that such regulations are to be enforced only by the Department of Transportation rather than through lawsuits brought by individuals or states.

Whatever reasons the SCOTUS majority had for thinking that Florida's lawsuit could be quickly dispatched, it did not disclose them. That feeds the impression that a majority of the Court believes it has the power simply not to hear cases within its exclusive original jurisdiction because the justices think that such cases are unimportant. Indeed, that impression is largely accurate, with an important caveat.

The caveat is that, as the Court explained in Mississippi v. Louisiana (linked above), one of the criteria it applies in deciding whether to decline original jurisdiction is whether there is an alternative forum. Now, one might think that Supreme Court exclusivity necessarily means there is no alternative forum, but the Court counts as an adequate alternative forum the possibility that the same issue can be decided in a case involving different parties.

I'm not persuaded that ought to count as an alternative forum. Usually we think of such alternatives as fora for the same claimants as well as the same issues.

Moreover, one would think that if the Court is going to reject a case that falls within its nominally exclusive jurisdiction partly on the ground that the same issue can be litigated in some other court with other parties, it ought to say that. Or, if there is some other reason for rejecting the case, such as standing, it should say that.

There is something of a precedent for what the Court has been doing in §1251(a) cases. Prior to 1988, in addition to hearing cases by way of its discretionary decision to grant a petition for a writ of certiorari, the Court was obligated to hear a large category of "appeals" in which its jurisdiction was automatic. However, it lacked the capacity to give full plenary consideration to all of those cases, and so over time it would, in a great many cases, summarily affirm the lower court rulings without issuing an opinion. An order summarily affirming was technically a decision on the merits, but for nearly all purposes, it functioned more like a discretionary non-precedential denial of certiorari. The system was broken, and eventually Congress responded by eliminating virtually all of the Court's mandatory appellate jurisdiction.

While I wouldn't try to justify the Court's pre-1988 summary affirmance practice, I understand that the Court was driven to it by docket pressure. By contrast, there is no comparable docket pressure in §1251(a) cases. According to a 2022 law review article by Professor Heather Elliott, from 1976 to 2022, the Supreme Court denied 28 of the 63 petitions it received for state-versus-state original jurisdiction cases. That is less than one case per year in which the Court exercised the discretion it believes it has to reject such cases. Surely it would not be unduly burdensome for the Justices to issue at least a brief per curiam opinion in each such case explaining why it was denying leave to file.

Who Judges Judges When they Act Badly?

2026-05-29T07:31:15.389-04:00

Federal judges are people too, albeit with life tenure and substantial governmental power. Because federal judges are people too, they will sometimes make grave mistakes of judgment when performing their official duties. When such lapses occur, however, federal judges cannot be meaningfully punished unless their misconduct rises to the level of an impeachable offense, which includes only “high crimes and misdemeanors.” And to impeach a federal judge requires a majority vote in the House of Representatives and a two-thirds vote in the Senate.

Because of the difficulty of the impeachment process, the question arises who judges the judges when they act badly but the behavior does not rise to the level of an impeachable offense. The answer unfortunately is the judges themselves. Therefore, it is imperative that investigations of misconduct by federal judges be publicly available so at the very least judges can be judged in the court of public opinion. Additionally, how federal judges work, especially when it comes to their law clerks, is or should be a matter of public concern, and yet there is much more mystery than transparency about how federal judges do the work that they do.

These issues were recently implicated when an unnamed federal trial judge who works in the states covered by the Eleventh Circuit Court of Appeals had sexual relations in the judge’s chambers with a law enforcement officer in a manner overheard by the judge’s law clerks. When initially asked about this by the Chief Judge of the Eleventh Circuit, Bill Pryor, the judge denied all of the allegations only to eventually admit a few weeks later as an official investigation was opened that the allegations were true. Here is the final result of the investigation:

The Subject Judge is a United States District Judge. In September of 2025, the chief judge of the Subject Judge’s court received information indicating that the Subject Judge had engaged in judicial misconduct by, among other things, engaging in an extramarital affair with a law enforcement officer and, in the course of the affair, having sexual intercourse in the Subject Judge’s office during work hours and within hearing distance of the judge’s clerks. The chief judge of the district court relayed the information to Chief Judge Pryor and he asked the Subject Judge to respond to the allegations. The Subject Judge promptly denied them. Thereafter, Chief Judge Pryor identified a complaint of judicial misconduct under the Judicial Conduct and Disability Act and appointed a special committee to investigate the complaint. The special committee retained counsel to assist in the investigation. During its investigation, the special committee corroborated the primary allegation regarding the affair and the sexual activity in chambers. In the midst of the investigation, the Subject Judge recanted the initial denial and admitted to the affair with a law enforcement officer, including sexual intercourse in the judge’s office during working hours. The Subject Judge also eventually admitted another allegation—that the Subject Judge attended a partisan political event. In light of the information gathered during the investigation, including the Subject Judge’s admissions, the special committee finds that the Subject Judge engaged in misconduct by: (1) engaging in the above-described affair and sexual activity in chambers; (2) attending the partisan political event; and (3) making false statements to, among others, Chief Judge Pryor. The special committee recommends that the Judicial Council issue the Subject Judge a private reprimand. The Subject Judge has also agreed to (1) issue letters of apology to certain law clerks affected by the judge’s misconduct; (2) decline to serve as chief judge of the district court when the judge would otherwise be eligible to do so; and (3) indefinitely refrain from serving on any Judicial Conference committee.

There were other allegations against the judge in question that I discuss below and are important. But let’s pause on one major point first. Why is the judge’s identity being kept from the public? Internet sleuths have likely discovered the judge's identity but there has been no official confirmation. Having sexual relations on a couch in one’s chambers during working hours a few feet from where the law clerks sit is obviously wrong on many levels, without even mentioning the additional detail that the affair was with a law enforcement officer (there’s no evidence that the officer had official business before the judge). Three law clerks were interviewed during the investigation:

Hearing the Subject Judge engaging in intimate contact in the judge’s office had a significant and negative effect on the above-described clerks. Law Clerk A recalled losing focus at work and being unable to sleep. Law Clerk A was concerned about how the Subject Judge’s conduct, if it came to light publicly, might adversely affect the public’s view of the judiciary. Law Clerk C said that the clerk was made “very uncomfortable” by what the clerk heard coming from the judge’s office. Law Clerk B stated that the clerk was so unsettled by the noises the clerk heard that the clerk had to leave the office for the day. Even those who did not have first-hand exposure to the sounds of the Subject Judge and the visitor described being adversely affected by the judge’s conduct. A former career clerk, who functioned as a quasi-supervisor of the term clerks, recalled two different term clerks asking for advice after hearing the judge and the visitor. The former career clerk described feeling powerless to prevent the term clerks from exposure to the relationship. Another term clerk said that the clerk’s colleagues frequently discussed what the judge and the officer were doing behind closed doors, leading to an awkward working environment.

The judge’s in-chambers sexual misconduct likely did not rise to the level of an impeachable offense but was seriously wrong. Moreover, the judge initially lied about all of this when questioned by Judge Pryor. And the judge also attended a partisan event, which violates judicial ethics rules.

The punishment for all this amounted to a required apology to the affected law clerks, disqualification from being Chief Judge in the future (we don’t know how senior this judge is so that penalty may or may not matter), and being ineligible to serve on any Judicial Conference committees (which is probably a reward, not a punishment). In other words, there was no real punishment. At the very least, the court of public opinion should have had the ability to render an official judgment, which is currently impossible as the judge’s identity has not been disclosed.

In addition to those questions, however, another part of the investigation raises even more important issues. The law clerks also reported the following:

Each of the six former law clerks interviewed reported that: (1) when assigning a clerk to work on a substantive civil motion, the Subject Judge did not indicate to the clerk how the judge was inclined to rule on the motion or otherwise provide any direction; (2) it was generally understood that the Subject Judge did not wish to discuss substantive civil-case related issues with clerks; and (3) the Subject Judge rarely, if ever, substantively edited civil orders the clerks drafted. Multiple clerks stated that, given their inexperience, they were uncomfortable with the level of discretion they appeared to exercise in handling civil cases.

In non-legal language, what all of that means is that when there were cases with important legal motions, including dispositive ones, pending, the clerks would pick up the file and write a draft opinion with no guidance from the judge. What that also means is that the judge’s knowledge of the relevant facts, legal issues, and the accompanying law came from the clerk’s draft order, not the parties’ briefs or the judge’s own research.

The judge’s response to those allegations was that he/she/they “reported making edits to between 30 and 40 percent of draft orders. The Subject Judge acknowledged that parties’ submissions are not reviewed before assigning a clerk to draft an order. Accordingly, the Subject Judge does not offer clerks guidance, in advance, as to whether a motion should be granted or denied.”

The final report from the investigation into all this said the following:

Although the committee is troubled by the law clerks’ assertion that the Subject Judge is not engaged in the resolution of civil cases (and, indeed, by the judge’s own admission of such a lack of engagement), the facts established do not support a finding of judicial misconduct. The special committee takes the Subject Judge at the judge’s word that, going forward, the judge will endeavor to be more engaged in civil cases and more open to substantive discussions with law clerks.

Here is a dirty little secret. Most federal judges manage civil motion practice exactly like the judge who was investigated. Clerks see the files initially, draft the opinions or orders resolving them, and then hand them to the judge, who routinely signs them as is or with few edits. This practice was true in 1983, when I clerked, and based on my discussions with dozens of clerks over the years from different parts of the country is still true today.

For about twenty years I helped lead my school’s Inn of Court, which brings together lawyers, judges, and students to discuss ethical, professional, and substantive legal issues. I loved my role and greatly admired the lawyers and judges who made the Inn possible. They let me (actually encouraged me to) discuss a host of controversial issues, from substantive constitutional questions to workplace discrimination to my extreme views on legal realism. But the one and only subject that was off limits was the role of law clerks. No one wanted to discuss that question.

But the legal community needs to discuss that question. Law clerks play a major role at the federal trial level deciding cases, not just doing legal research. On the ground that means that young lawyers right out of law school who have never practiced law are making important decisions that are often either barely reviewed by the judge or not reviewed at all.

There may be an argument that young, hungry law clerks should play that role, given that many federal trial judges have been on the bench for decades and likely and naturally think they have seen it all before. But if that argument is valid, then the judges should own the process publicly. But they don’t, and getting folks to discuss this question, as I mentioned, is enormously difficult. And life tenure makes all of this lack of transparency even worse.

Federal judges misbehaving is a problem, as misbehavior would be in any work environment. When federal judges misbehave, maybe other federal judges should not be the sole umpires of their misconduct. But in any event, when they misbehave the public should know about it, including in most cases knowing the judges’ identities. And how judges generally utilize their law clerks should also be transparent, but instead is the third rail of discussions about appropriate judicial behavior. Sadly, the investigation that is the subject of this post is not exceptional, which is not surprising given who gets to judge the judges.

-- Eric Segall

Why Are the US's "Supremacists" So Weak, Scared, and Whiny?

2026-05-28T14:08:59.993-04:00

The big news in American racism this year is that the bigots have decided to stop pretending that White men like them are being passed over in favor of supposedly inferior "diversity hires." Well, that is not quite right, because of course they will continue to whine about what they insist on calling reverse racism against (presumptively superior, I guess) White men. But the new and surprising (even to a cynic like me) addition to the White grievance canon in the US is that they are now tacitly admitting that they are afraid of a fair contest. Now, even when their competition bests them fair and square, that is still somehow evidence that the world is rigged against White men.

I made that point in the nineteenth and twentieth paragraphs of my 22-paragraph column on Tuesday of this week, which means that I violated the prime directive of persuasive writing: make the big point right at the top. Academic writing instills different expectations, and even after decades of being in the online pundit-like space, old habits die hard. Again, however, the big point -- indeed, the idea that motivated me to write that column in the first place -- is that White grievance politics has now jumped the proverbial shark by no longer even pretending to be "only" about superior White guys getting the short end of the stick.

Before exploring this point further, however, it will be useful to offer a quick recap. The conclusion that I am repeating here became clear in light of a new attack from Republicans -- not just random podcasters, but in this case the Attorney General of the State of Florida -- on the National Football League's so-called Rooney Rule. As Professor Krishnamurthi explained here last month:

The Rooney Rule, named for the former owner of the Pittsburgh Steelers Dan Rooney, requires among other things that a team “interview at least two external minority candidates in person for open head coach and GM positions and at least two external minority candidates — in person or virtual — for a coordinator job.” “Minority” is defined to include ethnic minorities and women.

The key point is that there is nothing in the Rooney Rule that gives minority candidates any advantage in the hiring decision. It says that the pool of interviewees must include two such candidates, but it does not require (or even politely request) that the decision maker(s) give any special weight to race, gender, or anything else. This is why on Tuesday I referred to objections to the Rooney Rule as categorically different from most other anti-diversity arguments, which rely on some version of the claim -- sometimes implicit but often explicit -- that White men are superior (one might even say "supreme") but are being passed over for non-merit-based reasons.

Readers of a certain age might recall the infamous "White Hands" political campaign ads for the openly racist Senator Jesse Helms of North Carolina, in which the camera focuses on the hands of a White man holding a job rejection letter. A narrator intones: "You needed that job, and you were the best qualified. But they had to give it to a minority because of a racial quota. Is that really fair?" There are many things wrong with that argument, but at the very least, it was based on the gut-level notion of fair play that only "the best qualified" people should get jobs. And although the bigots did not admit it, that argument at least clearly implied that when minority candidates are the best qualified, they should win out.

I hasten to acknowledge that the notion of a level playing field (or fair fight, or whatever metaphor one prefers) is itself a hotly contested notion. This famous cartoon depicts two notions of fairness in a way that shows how unfair something that is supposedly equal or neutral can be.

There is an even more relevant political cartoon from (I think) the 1970's that I have tried for years to track down, without success. (So please, I would be delighted to hear from any reader who recognizes what I am about to describe and knows where to find it. It might have been from Herblock, but I honestly am not sure.) The cartoon is set at a track meet, with the referee standing at the starting line of a running race. A Black man is standing about 20 yards back and a White woman is standing about 10 yards back. The referee is waving at both them to move forward to the same starting line as the White man. The White man is apoplectic, shrieking in the referee's face: "But I've always had a head start. This isn't fair!!"

To be clear, then, I am not in any way saying that the American right's invocations of "equal treatment" or neutral fairness should be taken as serious attempts to understand the many nuances of discrimination. They are pushing old ideas that have been offered in bad faith for decades, if not centuries. But they are at least minimally non-embarrassing in the sense that they say, in essence, "Bring it on! Give me a fair shake, and I'll show you who's the best."

Opposition to the Rooney Rule, then, is indeed categorically different, because it says: "Hey wait, I have to compete against them? I could win against the other White guys, but I didn't know about this." To stay in the realm of sports, this is a retread of the blatant historical segregationism in American sports. "You want Babe Ruth to play against those guys? But they're inferior, and he shouldn't have to prove that."

In a future column, I will show how this newfound weakness on the part of America's hate-mongers is showing up in other political controversies in this country. For now, however, it is worth taking the time to shine this spotlight on what is in fact an enormous self-own by the bigots of the world. They like to say something like this: "Qualified White guys are always more qualified, but the libs prefer mediocrity." But they want more.

Donald Trump embraced the move toward presumptive White male supremacy when, for example, he claimed last year (without evidence, of course) that a plane crash had been caused by federal diversity initiatives:

I changed the Obama standards [at the Federal Aviation Administration] from very mediocre at best to extraordinary. And then when I left office and [President Joe] Biden took over, he changed [the standards] back to lower than ever before. ... The FAA’s diversity push includes a focus on hiring people with severe intellectual and psychiatric disabilities. That is amazing… They can be air traffic controllers.

Again, that rant was driven entirely by the fact that some of the people at the FAA were not the kind of people that Trump favors. The logic, if one can call it that, is simple (and perverse): bad thing happened; some of the people involved were not "my guys"; those people were at fault. There is no need to make an actual argument based on evidence, as in: "Well, here is the proof that Biden refused to hire people who would not have allowed such an accident to occur." Instead, Trump and his kind say this: "White male supremacy is simply a fact, and we don't have to prove it."

One might imagine that the bigots would exult in the idea of a fair fight, with White men outshining minority candidates and taking every NFL head coach, GM, and coordinator position. That would show 'em once and for all, right? After all, we all saw how White supremacy was proven to be true at the 1936 Berlin Olympics. Those guys never should have been forced to run against Jesse Owens, I guess.

- Neil H. Buchanan

Education in Democracy: The Importance of Free Speech in American Public Schools (Guest Post by Ronald C. Den Otter)

2026-05-27T07:32:06.109-04:00

My new book, Democracy in Education: The Importance of Free Speech in American Public Schools, is about the importance of the free speech of junior high school and high school students in the U.S., calling into question why the U.S. Supreme Court has treated public schools so differently than colleges for free speech purposes. There are many ways to defend free speech. Instead of defending the free speech rights of students on marketplace of ideas grounds, my focus is on how educational the experience can be when students exchange reasons with their classmates.

The exercise of free speech rights over time can become normalized, not only encouraging students to think for themselves but also exposing them to ideas that they otherwise might not encounter elsewhere. An important part of becoming a citizen in a democracy calls for learning how to deal with disagreement in a pluralistic society like our own, which is characterized by considerable partisan divisions. It may seem counterintuitive that constitutional protection for student speech is even more imperative in the context of secondary education than at the college level, yet the point is that young people must begin to learn how to exercise their free speech rights before it is too late, developing tolerance for ideas that they find repugnant so that they do not immediately think censorship is the only solution for the dissemination of ideas that they find offensive or worse. In this sense, then, there should be much more constitutional protection for the speech of teenagers, not in spite of their youth but because of it.

Not that long ago, schools did not serve as venues where students could learn how to speak their minds. That appeared to change with the Supreme Court’s 1969 decision Tinker v. Des Moines Indep. Community Sch. Dist, but since then the Court has generally moved the country in the wrong direction, and many administrators have taken advantage of these decisions to suppress student speech with insufficient justification, sometimes to discriminate against viewpoints. (I say generally in recognition of the notable positive exception of the 2021 swearing cheerleader case, Mahanoy Area School Dist. v. B.L., although the fact pattern of the case involved the use of social media off campus on a weekend.)

When it comes to student speech, the constitutional status quo must be fundamentally changed. Any real marketplace of ideas, where ordinary people participate, including students, will fall far short of the ideal. Students will make plenty of mistakes, but that is fine. After all, doing so is part of the learning process. We do not want students to self-censor because they fear punishment. Neither do we want school authorities to coerce them into silence.

Censorship has many long-term negative consequences. Frequently, people forget the big picture when they want a false claim or “bad” idea to disappear. Because some and perhaps many school officials will not police ideas fairly, neutrality on their part must be constitutionally required to avoid unacceptable content-based and viewpoint-based restrictions on student speech. Otherwise, far too many learning opportunities will be lost.

In the book, I defend an autonomy-enhancing approach for teenagers who must begin to learn how to exercise their free speech rights sooner rather than later. Extensive restrictions on student speech in an educational environment are antithetical to respect for autonomy and the development of their autonomous capacities. There must be a very strong presumption against allowing school authorities to silence a student who wants to share their thoughts with others orally, in writing, or through expressive conduct. No solution is perfect, but the traditional remedy of counter speech should be assumed to be valid unless proved otherwise. Amid disinformation, which is inevitable, other students can be encouraged to take responsibility for fact checking and to not rely on someone else to do it for them, thereby facilitating the educational experience of separating the wheat from the chaff, a point that John Stuart Mill would have appreciated. The long-term goal is the establishment of a free speech-friendly culture, beyond what the state can or should do. Although judges can raise the constitutional minimum and lawmakers can ratchet up, in a democracy, everyone has a civic duty to improve the free speech norms of their communities and comply with them in practice. No one can do that for them.

Within any classroom, content-based restrictions are inevitable to keep the conversation on the designated subject matter. However, anything that is controversial is worth discussing outside of the classroom. Whether a student participates in such discussions is left up to them. On the campus of a junior high or high school, there should be no such thing as a false idea. That is the best way to think about the dangers of empowering school officials to engage in censorship. When the topic matters, students will want to talk about it, even when some or many of them might be angry or upset and considerable disagreement is unavoidable. The more controversial, the better, when it comes to student speech. No subject should be off-limits.

That is not to say that controversy is intrinsically desirable; its value is instrumental, stimulating interest amid so many other distractions competing for students’ time, most of which are not particularly educational. At a public school, if a topic is uninteresting or unimportant, very few students will pay attention. That many students are not “into” school is the bane of educators, including college instructors, who struggle to induce students to pay attention and do more than the bare minimum. When educators shut down controversy, students cannot avail themselves of the chance to learn why other people do not see the world in the way that they do, often with justification. Educators can take advantage of such situations by urging students to evaluate conflicting beliefs and in doing so, becoming more self-reflective and more willing to take seriously what others say, even when they disagree with them.

While well-intentioned, too many school authorities want to shield students from controversy to avoid discomfort on their part. In the wake of the police shooting of Michael Brown in Ferguson, Missouri, and civil unrest in 2014, many school districts instructed their teachers to avoid the controversy in their classrooms because administrators were more concerned with avoiding a sensitive topic. In some states and school districts, teachers cannot raise controversial issues in a classroom setting and can be disciplined (and even fired) for their extramural speech.

Under these circumstances, it is imperative that students be able to fill the void. These opportunities for expression can help adolescents become habituated to living in a free speech-friendly environment and following its norms. In a culture of Internet celebrities, social influencers, and partisan pundits who become obscenely rich due to their ability to lie, distort the truth, shock, and pander to their respective audiences, students must be exposed to an environment that contains counterexamples of what free speech, at its best, could be. The kind of communication which I advocate and believe is possible encompasses listening, trying to understand others’ perspectives, offering evidence, appreciating nuance, and developing intellectual humility in the face of complexity.

That alternative stands in sharp contrast to our public sphere, where the most uninformed people appear to dominate public discourse, lies and half-truths spread so easily, and personal attacks abound. The point is not that the ideal will be achieved but that so much room for improvement exists. American politics should not be some sort of reality television show, where bad behavior, because it is entertaining, leads to higher ratings. Given their place on the learning curve, the educational objective of the exercise of their free speech rights would be for students to learn to see their future participation in public deliberation in a particular way: not only to put up with ideas that disgust them but also to motivate them to respond with their own counter speech, viewing it as the only acceptable response. Whether they convince those who disagree with them is out of their control. While all people must have realistic expectations about the likelihood that they will persuade others even when they have the “better” argument (or in fact do have it), they can always continue to try when they are playing the long game. And those who disagree with them will do likewise.

In terms of constitutional protection for free speech and public support for it more generally, this moment is not the worst in American history, even though it may seem that way. That said, the American public’s commitment to free speech appears to be weaker than it used to be. Younger progressives do not seem to be bothered much by cancel culture. Republican efforts to remove books from school and public libraries reveal that they, too, are convinced that students should not be exposed to certain ideas. Any degree of bipartisan support for censorship, albeit not concerning the same viewpoints, ought to alarm us when it reveals that the views of many people are unprincipled. On both sides of the political spectrum, a fair number of them are not inclined to respect the autonomy of others by letting them express themselves without the possibility of censure or worse, notwithstanding that they value being able to articulate their own views with impunity.

Above all, this phenomenon reflects a failure to appreciate the importance of the reciprocity that we owe one another as members of the same political community, no matter how awful somebody else’s words may be. People should be able to say whatever they want to say, with extremely rare exceptions where the state’s countervailing interest is compelling. Almost all restrictions on student speech at public schools violate the Constitution and are morally wrong by not respecting the autonomy of teenagers, who should be able to choose what they want to say and how they say it (with narrow exceptions like threats, bullying, cyberbullying, and harassment, including the racial and sexual kinds). Censorship on the part of school authorities at a critical stage of their lives interferes with the development of their autonomous capacities because they are denied the chance, over and over again, to figure out things for themselves.

This book offers an unapologetic normative constitutional defense of the free speech rights of junior high and high school students with the objective of having the Court establish a prophylactic rule for student speech, moving far beyond the constitutional status quo. At present, student speech is underprotected, whereas it must be overprotected or else too much important student speech will be chilled, too many students will be denied the right to express themselves, and too many of their classmates will be deprived of the educational benefits of exposure to their ideas. For now, all of them will be less prepared for the deliberative aspects that the practice of democratic citizenship will demand in the future. A junior high or high school does not differ nearly enough from a public university to warrant such starkly different constitutional treatment. Indeed, anyone who has spent time on a college campus is aware that many college students are hardly more mature or thoughtful than their high school counterparts. After all, many of them are only a year or two removed from high school.

The actual practice of freedom of expression and the communication that results are indispensable to the cultivation of students’ autonomous capacities and those of others. Respect for the value of autonomy on the part of school authorities entails development of the critical thinking skills that constitute an essential part of civic education. The book underscores how the exercise of free speech rights can help teenagers to become more intellectually sophisticated and develop a more tolerant attitude.

It is hard to conceive of a genuine democracy where the vast majority of those who live in the same country do not care about respecting the autonomy of their fellow members and do not value independent thinking. There is a time and a place for limited paternalistic treatment of students. The curriculum should not be left to them when they do not recognize why some subjects are important or understand how they should be taught due to their lack of expertise. Those decisions are best left to professional educators.

By contrast, with respect to student speech, paternalism has no place in a public school. School officials do not necessarily know better (in fact, many of them probably don’t). Many students are as fully capable of exercising their free speech rights as adults are (or are close enough) and must have numerous opportunities to learn how to exercise them responsibly before it is too late. In the famous Tinker case, where Mary Beth and her brother John Tinker were suspended from school for wearing black arm bands to protest the Vietnam War, two of the plaintiffs were fifteen and one was only thirteen. Surely, that someone happens to be older does not mean that they are wiser or better informed about every topic (this was true in my day and still is true today). By high school, teenagers are nearing adulthood and many of them will attain this legal status before they graduate.

The alternative to the robust protection of student speech involves condoning the indoctrination and the infantilization of students, who are not allowed to speak freely, are shielded from certain ideas for their own good, and are told what to think. That alternative is authoritarian. School authorities already are incentivized to overreact and undervalue student speech to avoid controversy. Moreover, they do not always know better. They, too, are fallible.

-- Ronald C. Den Otter, J.D., University of Pennsylvania (Carey) School of Law, Ph.D., Political Science, UCLA, Professor of Political Science, California Polytechnic State University, San Luis Obispo.

The Right Chooses to Stop Being Coy About Its Bigotry

2026-05-26T15:54:04.467-04:00

We all agree that racism is bad, right? Right? At least as of this moment, opposing racism still appears to be the public position even of some -- but certainly not all -- of the most extreme Trumpists. Donald Trump himself has not publicly used the n-word, as far as I know (although no one will be surprised when he inevitably does), but he has been pushing racist ideas for years. Even so, we have not yet reached that anti-"woke"-est of moments when open, vulgar bigotry will become just another way for Republicans to "own the libs."

Why not? Because it continues to be perversely useful for Trumpists to appropriate the language of anti-racism as a means to promote White supremacy. That jujitsu move is hardly new, but it is again a favored tool on the right. The appointed seat-filler in the Florida Attorney General's office, for example, took it upon himself earlier this year to issue a statement on official stationery that begins with this: "Racial discrimination is wrong. It is also unconstitutional." Enlightenment? Hardly. The next sentence (ungrammatically) declares: "Yet Florida maintains several laws on its books that promote and require discrimination on its face."

So yes, we are right back to one of the Trumpists' favorite moves: Screaming about reverse racism. White men have had it tough for too long, you see. It is time to stop punishing them for no reason, you see. American conservatives know exactly one thing that the Rev. Dr. Martin Luther King, Jr., said, although they often mangle it. Something about having a dream where people are not judged by the color of their skin. Was Dr. King a Trumpist, too? Again, hardly. He had a dream about a time when that would be true in the United States and around the world. He not only predicted that he would never reach that place, but he also never suggested that we were close to reaching it.

How anti-anti-racist are these people? Policies that might mitigate the effects of racism in the US fall along a continuum, which I will describe below. It used to be that Republicans would complain about something that was on the relatively robust end of the mitigation scale, contrasting it with something tamer. In the infamous Bakke case, for example, Justice Powell's rejection of direct quotas was paired with a defense of the so-called Harvard Plan, which used a "holistic" approach to admissions that took race into account as one of several complicating factors in decisions to accept or deny applications to the college. The idea supposedly was not that "You can't fight the effects of racism" so much as "You can't do it that way."

That is now ultra outre, as Guha Krishnamurthi explained here on Dorf on Law last month. In "Is the Rooney Rule Illegal?" he examined a letter from that very same Florida AG to the National Football League's offices, a letter that had made the news by claiming bluntly that the league is engaged in "blatant race and sex discrimination" and declaring that "[t]he Rooney Rule and its offshoots are illegal in Florida." I have no idea what those "offshoots" might be, but we can safely assume that it is all about the AG's obsession with anything that is at all race-conscious.

I have addressed the Rooney Rule on Dorf on Law as well. In February 2025, I wrote that "[t]he National Football League in 2003 adopted the so-called Rooney Rule, which requires teams to interview at least two minority or female candidates for coaching and senior organizational positions." I also noted that "the Wikipedia page for the Rooney Rule describes it as both 'affirmative action' and 'hiring quotas,' even though the rule is not at all an affirmative action program and the only quota is in the number of interviewees, not actual hiring." Clearly, Florida's AG is trafficking in legal ideas from an unimpeachable source.

Professor Krishnamurthi's thoughtful column addressed how the language of Title VII would apply to a challenge to the Rooney Rule, and I commend his analysis to every reader's attention. He notes in particular that the current Supreme Court super-majority of MAGA Republicans (my description, not Professor Krishnamurthi's) might be a willing audience for such a challenge: "it would not take much to imagine a court—especially the Roberts Court—seeing [Connecticut v.] Teal as prohibiting any classification based on a protected trait at any stage of hiring, seeing even more competition in a job as some kind of deprivation."

My interest here, however, is not in predicting how the courts might address such a challenge. Rather, I think it is important to come to grips with just how far we have moved down the continuum of efforts to fight the ugly effects of American racism, to the point where ambitious Republican officeholders now feel free to attack something as anodyne as the Rooney Rule.

Consider in broad strokes what that continuum looks like. On one extreme, there is no allowance for even thinking about race, gender, and so on. On the other extreme, we can have rigid race-based quotas, where for any selective position (jobs, school admissions, or otherwise) a strict number of places are reserved for historically disfavored groups. And at the true extreme, it would not even be an "if available" quota. That is, one could imagine a program that included in its admissions criteria a requirement that 10 places be filled by people who meet the definition of "minority," but if fewer than ten such people were to apply, the unfilled spots could then go to non-minority applicants. Such a more restrictive policy might even make sense, if one thought that it was important to keep slots open to make it clear that the lack of applicants was itself evidence of racism. In any case, the UC Davis Medical School rule in Bakke is not at the end of the spectrum, because there were in fact minority candidates who filled the special program's slots. (Bakke, by the way, was rejected in part because of age discrimination, which was not and is not barred by federal law, but Davis chose not to defend itself on that basis.)

Moving away from that end of the continuum, we find affirmative action. Although there are many variations on the idea of affirmative action, I think the most useful way to think about it is by reference to so-called "plus factors." In the form with which I am most familiar, the idea is that a program would identify certain characteristics that have not typically been thought of as part of the process but that might be useful for some broader purpose. Powell, for example, wrote that "[a] farm boy from Idaho can bring something to Harvard College that a Bostonian cannot offer. Similarly, a black student can usually bring something that a white person cannot offer."

[As an aside, note that this is the basis for my oft-stated belief, as I reiterated in my Rooney Rule column last year, that J.D. Vance was a DEI admittee to Yale Law (and possibly also to The Ohio State University as an undergraduate).]

Slightly further along the continuum, other affirmative action programs have a hard cutoff on supposedly objective criteria (test scores, in the paradigm case) to determine who meets the basic qualifications for the position, with the plus-factors only coming into account when assessing that smaller pool. For example, if one were to say that an 85 percent test score indicated that the applicant could perform as needed, and there were five people with scores about 85 vying for one remaining slot, race could then be a plus-factor rather than continuing to use test scores.

The longstanding objection from the right to that kind of program, of course, involves obsessing over small (and generally meaningless) numerical differences and treating every unit as a sacred measure of one's worthiness. "Candidate X had a score of 90, and Candidate Y had a score of 87, but the less qualified candidate stole the slot from the merit-based candidate because of race!" Again, if the entity involved thinks that anyone who scores 85 or better can do the job, then that should be the end of the story about merit. We can all agree that, say, Stanford Law School is better in some meaningful sense than the University of American Samoa's law school, but at some point we have to concede that no algorithm based on "objective" criteria will tell us with certainty whether Stanford is better than NYU or Columbia.

Anyway, the fact is that the White-grievance-fueled American right has always found ways to chip away at the legitimacy of every possible variation on an affirmative action program that explicitly took race into account in making decisions. The brilliance of the Rooney Rule thus could be seen in its explicit rejection of anything resembling a policy to use race or gender even as a plus-factor. The subtle but powerful motivation behind the Rooney Rule was simple, as I described it last year:

The idea was that team owners had a "usual suspects" mindset that resulted in the same White guys being recycled through the ranks, with the hope being that simply having them talk to minority candidates might turn up an unexpected surprise or ten. An unintended negative impact of that rule was that minority candidates have been put through pro forma interviews that wasted their time, but it did lead to a small but meaningful increase in the number of Black coaches in the league.
So the idea there is to say to decision makers: "Hey, there's a bunch of people who might be very good, but you've been overlooking them for some reason. To be part of this league, you need to at least talk to them, and we hope (but won't require) that you will do so in good faith."

That final sentence is key, because there was nothing in the Rooney Rule that would stop a team from deciding in advance to hire Junior Lombardi (to use Professor Krishnamurthi's cleverly named imaginary candidate). One simply never knows, however, when or how often such a mindset could be pierced by an awesome interview, where the owners issue a collective gasp and says, "Damn! How did we not know about this Junior Tomlin guy?! Sign him up now!"

So what is the right's objection to the Rooney Rule, not as a Title VII matter or a constitutional matter, but in the context of White grievance and the belief that "White guys have everything going against them"? The Rule does not say that race is a plus-factor in hiring. It does not say that there is a threshold of "good enough." It certainly does not say that no Whites need apply. It says only that people who are making decisions based on their own definition of "best candidate" have to sit through at least two interviews with non-usual suspects. And maybe listen.

Although I have described these policies are existing along a continuum, this is a categorical difference. We are no longer being told that more-qualified White guys are losing out to less-qualified (or supposedly unqualified) diversity hires. We are being told that White guys cannot tolerate even to be put in a position where the applicant pool includes people who might turn out to be more qualified, full stop.

As I also noted in last year's column, the Trumpist right no longer even bothers to say that there might be people who are non-White men who are in fact qualified. As a presumptive matter, they attack anyone as per se unqualified who is a woman, a racial or ethnic minority, LGBTQ+, or any other group that they hate. I wrote: "Any person from a disfavored group is now deemed to be unqualified -- not even as a rebuttable presumption, but simply as a given fact of nature."

Years ago, I had a conversation with a guy who gamely (and sincerely) argued that discrimination against women and minorities was genuinely a good thing, because by putting up barriers that people in those groups had to surmount, we were guaranteeing that truly the best of the best would make it through the gauntlet. Of course, that argument conveniently ignored the implication that we should be comfortable with White dudes never having to pull a muscle trying to prove themselves. But I honestly never thought we would reach the point where the bigotry would be even more extreme, with the new presumption being that nothing could ever prove that anyone other than a White man is the most qualified candidate.

The attack on the Rooney Rule is therefore not only an open admission of bigotry but a concession that the bigots never truly believed that they were losing because they were not being given a fair process -- unless "fair" is simply redefined to mean "resulting in White male supremacy." Why bother to compete when it is easier to make words mean just what we choose them to mean -- neither more nor less?

- Neil H. Buchanan

For Memorial Day: Seemingly Smart Wars Can Prove Dumb, But the Opposite Nearly Never Occurs (and a Dorf on Law Classic)

2026-05-25T07:00:00.000-04:00

Memorial Day recognizes those who made the ultimate sacrifice for their country. Honoring that sacrifice would seem to require, at a minimum, that nobody be asked to make it in vain. Accordingly, fifteen years ago, I considered then-candidate Obama's 2002 statement that he was against "dumb wars" in light of what he had, as of May 2011, accomplished as president. As I noted there, although nations should fight only those wars that are just and smart, even a just war can turn unjust in its execution, and what may have initially looked like a smart (or at least non-dumb) war can prove dumb as it drags on.

The opposite transformation, however, seems nearly impossible to imagine. Put aside the fact that Donald Trump's war on Iran violates both the US Constitution and international law. Put aside the possibility that under very different circumstances, an attack on Iran might nonetheless be just. Under the actual circumstances, this war is colossally stupid. Despite early suggestions that the US sought regime change, Trump has lately taken to defending the war on the sole ground that it aims to prevent Iran from obtaining a nuclear weapon.

But that goal was much more likely to have been achieved through diplomacy and would have come without the enormous cost in lives lost in Iran, Israel, Lebanon, the broader region, and among US personnel, not to mention the enormous suffering unleashed throughout the world as a consequence of the entirely predictable stoppage of shipping through the Strait of Hormuz. Notably, the peace agreement that the U.S. and Iran are reportedly near reaching would reopen the Strait while deferring further negotiations on stockpiles, nuclear enrichment, and missiles. And that's assuming there is an agreement at all. Thus, in the best case scenario, war-ending diplomacy returns us to the status quo that prevailed before Trump launched the war--with the Strait open and negotiations taking place to return to something like the agreement that was reached under the Obama administration and jettisoned during the first Trump administration. The art of the deal!

I suppose it's conceivable that the Iran war could prove to be beneficial but it would have to be completely by chance. If you decide to repeatedly hit yourself in the chin with a hammer because you watched a TikTok video promoting bone-smashing, you won't thereby improve your appearance but you might end up in the hospital and as a result have to cancel plans to take a flight that ends up crashing and killing all the passengers onboard. In that way, your stupidity would have proved unpredictably lucky. However, apart from that kind of retrospectively fortuitous sequence of events, the war with Iran will likely remain at least as stupid as bone-smashing.

With that update, below I reproduce my 2011 essay, which originally ran here:

A Memorial Day Accounting

President Obama very likely would not be President today were it not for a speech he gave in October 2002, in which he opposed the coming war in Iraq. Delivered at a time when most prominent national Democrats were too timid to challenge the Bush Administration's plans to topple Saddam, Obama's early and unambiguous opposition to the war gave him the credibility to appeal to the substantial anti-Iraq-war constituency in the 2008 primaries, even though his principal rival for the nomination, Hillary Clinton, was by then taking roughly the same position as Obama on Iraq policy going forward--a fact underscored by Obama's subsequent naming of Clinton as Secretary of State.

Some of Obama's early supporters have thus been disappointed by the fact that in office he has either been stymied in efforts to repudiate Bush policies (as with respect to military trials) or has seemed to adopt them. The irony of Obama receiving the Nobel Peace Prize shortly after his decision to escalate the conflict in Afghanistan was not lost on many, and to my mind it shows how people--apparently including the Nobel committee--hear what they want to hear.

Obama's 2002 speech was, from the start and very clearly, nothing like an anti-war speech. He came out against "dumb wars" and "rash" wars, but in favor of fighting just wars--like the Civil War and World War II, noting how his own grandfather had signed up to fight the day after Pearl Harbor and averring that he himself would willingly take up arms to avert further terrorism on the scale of 9/11.

The short 2002 speech remains salient and, re-read in 2011, it offers at least partial validation for the Administration's recent efforts to position the U.S. on the democratic side of the Arab spring. In 2002, Obama said:

Let's fight to make sure our so-called allies in the Middle East, the Saudis and the Egyptians, stop oppressing their own people, and suppressing dissent, and tolerating corruption and inequality, and mismanaging their economies so that their youth grow up without education, without prospects, without hope, the ready recruits of terrorist cells.

The validation is only partial, of course, because the U.S. was slow to support protesters in Egypt and has remained allied with the status quo in Saudi Arabia and Bahrain, albeit ambivalently in both cases.

What emerges overall, then, is an "Obama Doctrine" that is a kind of tempered, clear-eyed idealism. With his predecessor, Obama believes that democracy is ultimately a stabilizing force for good and, also like Bush, he is willing to use force to promote it. But Obama is temperamentally cautious, much less the cowboy that Bush fancied himself. Obama is willing to go in, but, as Libya shows, not so willing to go all in.

These characteristics should make Obama's foreign policy broadly popular among Americans, who have long combined a pragmatic and an idealistic streak, mixed in with periodic bouts of isolationism. Obama is not an isolationist, but his caution can make his views more attractive to isolationists than the approach of some of his predecessors. Except in the extremely unlikely event that the Republican Party nominates Ron Paul, Obama's 2012 challenger will probably play the hawk, a strategy unlikely to work: Given the record, that will render Obama as a sensible centrist, not a dove.

On this Memorial Day and more generally, we should not evaluate a President's views on war and peace in simply political terms. The true measure of foreign policy is not whether it is currently popular; it's whether it is ultimately effective. The Iraq war was quite popular when it was launched but lost support over time.

Whether Obama's shift of focus and resources back to fighting al Qaeda and its allies proves ultimately effective remains to be seen. Killing bin Laden satisfied an important national need and may open up opportunities for a political solution in Afghanistan. However, it also could widen a breach with Pakistan that ultimately proves more harmful still. America's engagement with central Asia and the Middle East over the last three decades has been a story of repeated episodes of blowback and unintended consequences. That could continue.

In the end, the problem with wars is that even just wars and smart wars can become unjust and dumb ones--in the sense that they come to undermine rather than advance the values that seemed to justify fighting in the first place. That doesn't necessarily mean that there aren't wars worth fighting. It does mean that one should be extremely cautious to ensure that the people who are maimed and killed in such wars do not do so in vain. Obama's 2002 speech expressed just that sentiment in its peroration. The then-future President stated that we should not "allow those who would march off and pay the ultimate sacrifice, who would prove the full measure of devotion with their blood, to make such an awful sacrifice in vain."

So far, it is not entirely clear that the President's actions have lived up to the standard he set for himself in 2002. Whereas it is hard to fault the President for insufficient caution in his domestic political judgments, when it comes to sending Americans into combat, it remains to be seen whether he is quite so reluctant a warrior as he once appeared.

-- Michael C. Dorf

Federal Courts Exam 2026: Data Center Nuisance Suit; Habeas Corpus; and Sovereign Immunity

2026-05-22T07:00:00.000-04:00

[N.B. My latest Verdict column discusses the "Anti-Weaponization Fund" that Attorney General Blanche announced as part of the settlement of the Trumps' frivolous lawsuit against the IRS. Among other things, I suggest how a future Congress might amend the statute that authorizes the executive branch of government to settle lawsuits to prevent future abuses by a future shamelessly avaricious and corrupt president, should we be so unfortunate as to experience another one. Now the exam.]

Below you will find the exam I gave my federal courts students in the semester just concluded. They were permitted to consult their casebooks and notes but not the Internet, AI, or the like and were subject to a 4-hour time limit and a 2,500-word limit.

Question 1 (30 percent)

After holding hearings at which are recounted incidents reflecting popular hostility to AI data centers—very large installations of computers used to train and/or run artificial intelligence models—Congress passes and President Trump signs the Protecting American Competitiveness Against Foreign Threats And Domestic Luddites Act (PACAFTADLA). It includes the following in its Findings:

The race to build artificial general intelligence is a race to control the future. American companies must not lose their advantage relative to foreign competitors. Bureaucratic red tape, unlawful protests, and nuisance litigation against such companies undermine American competitiveness.

The original version of PACAFTADLA introduced in the House of Representatives included a provision that would have preempted most state law causes of action against AI data centers, but in order to secure passage from key members of Congress, that language was stripped out during negotiations with the Senate. As a consequence, PACAFTADLA as finally enacted contains two operative provisions. One of them makes it a crime to “interfere, except through First-Amendment-protected speech, with the operation of an AI data center that is operated by or on behalf of an American-owned and operated company led by a human being.” The other operative provision, which is at issue here, states:

A civil action against or directed to an American-owned and operated company led by a human being and alleging harms arising out of that company’s operation of an AI data center may be removed by the defendant(s) to the district court of the United States for the district and division embracing the place wherein it is pending so long as the notice of removal includes as an attachment an affidavit signed by the Chief Executive Officer of the defendant company swearing or attesting that such Chief Executive Officer is a human being and not an artificial intelligence.

Sylvia Puddingsworth owns and lives on 30 acres of land in El Dorado County, California, on which she operates a yoga and wellness center. Google recently purchased an adjoining 1,200-acre parcel and issued a press release announcing “tentative plans” to construct a massive AI data center that would begin operating in mid-2027. Puddingsworth sued Google in state court in San Francisco, alleging that the planned AI data center constitutes a nuisance under California law because it would create unreasonable levels of noise and pollution. She sought an injunction against the construction and operation of the data center. Google removed the case to the U.S. District Court for the Northern District of California pursuant to the removal provision of PACAFTADLA. Its removal notice included as an attachment an affidavit of Google CEO Sundar Pichai attesting that he is a human being. (Pichai is also the CEO of Alphabet, Google’s parent company. Both Google and Alphabet are incorporated in Delaware and headquartered in Mountain View, California.)

Puddingsworth filed a motion to remand to state court on the ground that there is no jurisdiction in federal court. Google opposed the motion. Federal District Judge Jacqueline Scott Corley held a hearing on the motion. Below is an excerpt of the oral argument transcript. Seana Dutton represented Puddingsworth, while Elliott Lancaster represented Google:

THE COURT: Do you contest the fact that Google is an American owned and operated company that is led by a human being?

MS. DUTTON: We do not, your honor.

. . .

THE COURT: Your company’s press release describes tentative plans to build the data center in El Dorado County. How tentative?

MR. LANCASTER: I would say it’s about 95 percent certain. There’s a very slight chance we might use the site instead for Waymo testing or possibly as a corporate retreat site for Google and Alphabet executives. Or we could resell it. There’s also a parcel we’re negotiating for in Missouri for a data center but . . . .

THE COURT: How did you arrive at the 95 percent figure?

MR. LANCASTER: Just a ballpark estimate. We don’t even have title to the Missouri land, and even if we get it, there’s a big advantage to California because it’s closer to corporate headquarters. And we need more data centers. Plus, I’ve seen the architectural plans for El Dorado, so yeah, very likely. About 95 percent.

. . .

THE COURT: I have before me the remand motion, but I also have on file your answer to the complaint. You don’t appear to raise any federal defenses. Is that correct?

MR. LANCASTER: Yes, your honor, but it’s possible we could amend the answer to raise one.

THE COURT: What defense?

MR. LANCASTER: Oh, I don’t have a particular federal defense in mind. I thought you might be suggesting one, in which case we’d be happy to amend to include it if it’s non-frivolous.

THE COURT: It’s not my job to help attorneys representing multi-trillion-dollar companies. So your answer then is no?

MR. LANCASTER: That’s correct at this time. But I would note that PACAFTADLA doesn’t require a federal defense for removal. Now, if I may turn to plaintiff’s suggestion that . . . .

You are a law clerk to Judge Corley. She has asked for your assessment of whether to grant the motion to remand to state court. Write the analysis and conclusion portions of a memo to her.

Question 2 (30 percent)

Steven Jones is arrested and charged in Myrontana state court with having murdered Grace Vincent. Unable to afford an attorney, Jones is assigned public defender Ron Overby. The state maintains an open files policy. Overby inspects the files during a lunch break on another case. He sees the following items: photographs of the crime scene; a photograph of an evidence bag containing some pieces of broken glass from a window in Vincent’s home; a police report by Detective Gretchen Hughes; a coroner’s report concluding that Vincent was killed by multiple gunshots; and a statement given to the police by Vincent’s next-door neighbor, 82-year-old Sam Oldman, who said that he heard a woman’s voice screaming coming from Vincent’s house and then less than a minute later saw Jones fleeing the scene. Overby comes to the preliminary assessment that the state’s case against Jones is weak because the only evidence that implicates him is Oldman’s statement. Overby negotiates a deal for Jones whereby he would plead guilty to manslaughter and serve a six-year sentence. However, Jones refuses the deal, insisting on his innocence.

At trial, the prosecution first offers testimony of Detective Hughes. She describes the broken window as “the likely entry point used by the killer.” The prosecution next offers Oldman’s testimony. The prosecutor asks Oldman how he knows that Jones was the person he saw running from Vincent’s house. Oldman says he recognized Jones because he had served Jones on multiple occasions at the soup kitchen at his church. On cross-examination, Overby asks Oldman how old he is. Oldman truthfully answers that he is 82. Overby also asks Oldman whether the light was good on the night of the murder. “Yes,” Oldman says. “There was a full moon.”

Jones testifies that on the night of the murder he was home watching a football game but admits on cross that no one was with him. The jury deliberates for three hours and returns a conviction. Jones is sentenced to thirty years in prison. Overby briefs and argues the appeal, contending that there was insufficient evidence as a matter of law. The appeals court rejects the appeal on two grounds: “(1) Appellant waived the argument by failing to move to dismiss at the close of the evidence; and (2) in any event, the evidence was sufficient.”

Under Myrontana law, the first opportunity for a defendant to appeal a conviction based on a claim of ineffective assistance of trial counsel is on state collateral review. Pursuant to the public defender office policy, the case is assigned to another public defender, Janice Underhill, for the sole purpose of filing a state collateral review petition arguing that Overby had provided Jones with ineffective assistance of trial counsel. Underhill contends on collateral review that Overby was ineffective in failing to preserve the sufficiency of the evidence objection. The state court rejects this contention, as does the appeals court.

Soon thereafter, Jones unexpectedly inherits approximately $500,000 from an uncle who died without other heirs. Jones then hires private attorney Ace Freedson to represent him. Freedson goes to the District Attorney’s office to review the Jones file. He inspects the picture of the glass shards closely and notices specks of red that he surmises are blood from the killer. He asks the Assistant D.A. who prosecuted the case whether the state still has the glass shards in its evidence room and whether they were ever tested for DNA and blood type. The prosecutor says the shards are still there but haven’t been tested. The prosecutor tells Freedson that Jones can get them tested at his own expense if he chooses.

Jones pays to have the shards tested and his own blood drawn. The laboratory report confirms that the substance on the shards is blood and that the DNA does not match Jones’s DNA. It also confirms that the blood on the shards is type O negative, whereas Jones is type AB positive. Freedson then files a motion in the Myrontana trial court for a new trial. The motion is rejected by the trial judge, whose one paragraph opinion states that “the new evidence would not have changed the outcome of trial because the blood on the window could have ended up there at any date before the murder, or perhaps Jones had an accomplice.” The state appeals court affirms without opinion.

Nearing the end of the one-year statute of limitations period, Freedson files a habeas corpus petition on behalf of Jones in Federal District Court for the District of Myrontana. You are an associate in Freedson’s small but prestigious firm. Freedson provides you with the foregoing information. He asks you for a memo addressing the question whether via the federal habeas petition Jones can obtain his freedom or a new trial based on the blood shard evidence. Freedson wants to argue that Overby provided ineffective assistance of trial counsel in failing to seek testing of the blood on the shards and that Underhill provided ineffective assistance of counsel in omitting that particular ineffective assistance of trial counsel claim from the state collateral review petition. Freedson also wants to contend that Jones is “actually innocent” of the murder for which he was convicted. Freedson has hired a crime scene investigator who is prepared to testify that based on the crime scene photos, the person whose blood is on the shards is almost certainly the murderer. Write the analysis and conclusion portions of the memo.

Question 3 (40 percent)

You are an aide to Representative Jamie Raskin, who is the ranking (i.e., senior Democratic) member of the House Judiciary Committee and a former constitutional law professor. As you may know, a Republican member of the committee, Representative Chip Roy of Texas, is the principal sponsor of the Safeguard American Voter Eligibility (SAVE) Act, which has passed the House but has stalled in the Senate. The SAVE Act would require specified proof of U.S. citizenship for voting in federal elections. It provides for various civil and criminal penalties for persons, including government officials, who violate the Act.

Representative Roy recently circulated a new bill that contains all of the provisions of the SAVE Act as well as the following additional provisions:

Section 2(l): This Act waives and abrogates state sovereign immunity. Waiver is authorized by Congress’s powers set forth in Article I, Section 4. Abrogation is permissible under any of the Fourteenth, Fifteenth, Nineteenth, Twenty-Fourth, and Twenty-Sixth Amendments, each of which restricts voting rights to citizens. Any U.S. citizen who is a registered voter residing in an electoral district in which any aliens are permitted to register and/or vote in violation of this Act may sue the State in which that citizen resides for the greater of actual damages or $5,000 per alien permitted to register and/or vote.

Section 2(m): In the event that a federal court rules that Section 2(l) of this Act is unconstitutional, the United States shall be empowered to bring an action against a State for the same damages that would otherwise be available as described in Section 2(l). The United States may elect to bring such suit in any federal district court in the State in which the violation is alleged or before the hereby-created SAVE Act Commission consisting of the Attorney General (or acting Attorney General), the Chair of the Federal Election Commission (FEC), and the Chief Justice of the United States acting as a special commissioner. Actions before the SAVE Act Commission shall be governed by the Federal Rules of Civil Procedure to the extent practicable. If the United States sues before the SAVE Act Commission, notwithstanding any other provision of law, its determinations shall be final, except with respect to questions of constitutional law, as to which an appeal may be taken to the U.S. Court of Appeals for the D.C. Circuit. Notwithstanding any other provision of law, the D.C. Circuit’s ruling on any such appeal shall not be reviewable by any other court.

Representative Raskin asks for your assessment of the constitutionality of the new provisions that Representative Roy has circulated. In writing your assessment, it may be useful to know that by law the FEC comprises six members, three Republicans and three Democrats. However, currently there are only two members and thus the FEC lacks a quorum to conduct its ordinary business. The current FEC Chair is Democrat Shana M. Broussard.

-- Michael C. Dorf

We Have a New Member of the Uniquely Bad Trump Appointee Club

2026-05-21T16:27:39.229-04:00

Are there members of the Trump Administration who are anything other than interchangeable parts in that creaking machine? That is, are there Trump appointees or advisors who create what economists call "value added" (although in this case the accurate term has to be value destroyed), doing such unexpected and nonreplicable damage such that getting them out of their jobs would in fact be a net boon to the world at large? Yes, although not many. As the title of this column indicates, however, we now have a new inductee into that shameful boys' club (which in theory could become co-ed one day).

But what does it mean to say that someone is or is not interchangeable in this sense? In January of this year, before Donald Trump had dumped Kristi Noem as the (melting) public face of his cruel anti-immigration policies, there were some maybe-kinda-but-not-really-plausible rumblings in Congress about impeaching Noem. The hope was to remove her from her seat in the Administration because of the many terrible things that she had done at Trump's behest -- most obviously her enthusiastic support for the killings of innocent protesters in Minneapolis.

In response to those calls for Noem's impeachment, I wrote a column in which I argued in part (drawing on a nice piece by Jan-Werner Müller in The Guardian) that there were what I will now call second-order reasons to try to impeach Noem -- specifically the fact that the process of impeaching her would keep the media's fleeting attention on the terrible things that had happened, and it would also put a dent in the sense of utter impunity that pervades the Trump regime. That is, the importance of impeaching Noem was not to be found in actually getting her out of the government, which is of course what we usually think is the essential, first-order effect of an impeachment. Importantly, those good second-order effects would be achievable even if the impeachment vote or the Senate trial were to go in Noem's favor.

But my larger point was that in fact a good first-order effect of such an impeachment drive would not matter at all. Noem would immediately be replaced by an equally insane flunky, and things would not change. Why? Because Noem does not have the cleverness needed to be uniquely harmful in her role. We now have evidence to support my claim, in that former Senator Markwayne Mullin is filling her pumps seamlessly as Secretary of DHS. New fool, same results.

As it happens, I had discussed this broader question -- Is person X uniquely bad, or are they easily replaceable with someone who would do the same bad things that other people in Trump's world are telling them to do? -- in the first month after Trump's return to office. I argued in a February 2025 column that only Elon Musk and Robert F. Kennedy, Jr. were capable of being inventively awful, such that getting them out of power would be a net positive for the world, because their replacements could not inflict nearly as much damage. Musk was not even replaced after he left a few months later, but even if he had been, his absence would have been a big plus.

That 2025 column, in turn, used Brett Kavanaugh as an example of someone who could have been swapped out for anyone else on the FedSoc shortlist for the Supreme Court. I considered but ultimately rejected J.D. Vance for the uniquely-bad rating, saying that "[h]ad he not been chosen as VP, the finance bro world would still be amply powerful in Trump's universe." In the February 2026 column, I quoted that earlier line and added: "Even though Vance has been more public-facing than I expected, trying to build his political brand, I currently stand by my earlier assessment."

It might also helpful to clarify a potential misunderstanding about what it means to be uniquely bad as a member of this Administration. The idea is not only that some individuals are uniquely capable of inflicting damage that would not otherwise have been inflicted. The additional question to keep in mind is whether some of those individuals would continue to wreak havoc even if they were not serving in an official capacity in Trumpworld. I returned to this question in a column last month, assessing Trump's top two economic advisors and concluding that both of them are utterly non-unique. (Notably, I wrote that entire column about US economic policy in 2026 without once mentioning -- or honestly, even thinking about -- Scott Bessent. That is how much of a non-entity our current Treasury Secretary is.) In that column, I argued that there is

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.

Again, Kennedy continues to embody this so well because he meets both requirements: (1) He has uniquely terrible ideas, and (2) If he were gone, Trump would almost certainly not replace him with someone who would continue to do what Kennedy is doing. Kennedy's departure cannot come soon enough, and having a generic Trumpist in his place would be a huge improvement.

With changes in the Administration and new evidence of bad ideas and bad behavior arising every day, however, we need to be alert to the possibility of new contenders to keep RFKJr company in the clubhouse. As it happens, today's news includes a minor story about Trump's nominee to run the National Science Foundation (NSF). That is not a cabinet-level role, of course, but because it is in today's papers, I can use this guy (whose name I will not even bother typing) as an example of someone who is nowhere close to being in Kennedy's category. This guy has no science background at all, making it worth a minor headline when the science community announced its very understandable skepticism about his appointment, but an article in The New York Times provides the key information for my purposes here:

N.S.F. is widely seen as an agency in turmoil. It has had no director for more than a year and is facing budget cuts as Mr. O’Neill awaits Senate confirmation. The administration has canceled or suspended hundreds of N.S.F. grants and recently fired the members of an independent board that oversees the research agency.

That guy is not a unique problem. The Trumpists will continue to do to science what they have been doing, with him or without him (largely, I should add, because of RFKJr).

A more serious possibility is Acting Attorney General Todd Blanche. Professor Dorf's column today on Verdict assesses the "weaponization" slush fund that Blanche helped to create and is eagerly (and dishonestly) defending. I consider Blanche to have genuine potential (in the worst sense) here, but what he has done thus far seems to differ only in style from what Pam Bondi did before Trump fired her as A.G. last month. Blanche does seem to have the desire to be a supervillain, but he is not there yet.

So who is the new member? Almost immediately after I wrote my February 2025 column (the one where I said that Musk and Kennedy were uniquely capable of doing damage but Vance was not), I suddenly remembered that I had said nothing about then-new Defense Secretary Pete Hegseth. I thus amended that column by adding this:

[Update: I completely forgot to mention the new Secretary of Defense, Pete Hegseth, who is loathsome but in no way differs from his potential replacements on policy. If anything, he is a perfect example of a cardboard cutout who will do nothing that he is not told by others to do.]

Ahem. For his first year in office, Hegseth lived down to my expectations. He, like all of the other clowns in that circus, did have signature moments that we associate with them -- Bondi's "slam book" congressional testimony rants, Noem's "ICE Barbie" weirdness, Kash Patel's inability to stop posting incorrect information about investigations, and on and on. Similarly, Hegseth's "no weirdos and no beardos" speech to the military brass and his insistence on saying that he heads the Department of War (even though neither he nor Trump has the legal authority to change the name of the Department of Defense) were surely not identical to what an alternative DoD secretary would have done, but those things were not supervillainous.

Even his more damaging moves, like blocking promotions for officers who are women or men of color, were about what one would expect from anyone in Trump's world. I thus have a difficult time imagining that Trump's next pick would have substantively differed from Hegseth on anything that we might truly care about. Until now.

What has changed is that we now know that Hegseth seems to have been the person who made the difference in pushing Trump into the invasion of Iran. Yes, there are other people to blame (most obviously Netanyahu), but "[w]ithin the cabinet, Mr. Hegseth was the biggest proponent of a military campaign against Iran," according to reporting in The Times. That Hegseth prevailed over Vance's apparently quite strenuous opposition to the invasion is further evidence that Vance is not uniquely effective in doing anything (and in this one instance, it is truly a tragedy that Vance failed to get what he wanted).

Hegseth was already known to defend war criminals, so his "maximum lethality, not tepid legality" rap-poem was not a surprise. It is, however, difficult to think that even the Trumpiest of alternatives to Hegseth would have gleefully committed mass murder on the high seas. More generally, he makes it clear that he is simply bloodthirsty.

Hegseth is also a fierce advocate of one of the most extreme versions of Christianity that I have ever come across. He actually wrote a book called American Crusade, where the word "crusade" is not used metaphorically. He loves the Crusades. A profile of Hegseth by David Smith in The Guardian includes this:

The defence secretary attends Pilgrim Hill Reformed Fellowship, a church linked to the Communion of Reformed Evangelical Churches, a denomination co-founded by the pastor Doug Wilson, who has openly advocated a theocratic vision of society in which wives should submit to their husbands and women should be denied the vote. Wilson recently led a worship service at the Pentagon at Hegseth’s invitation.
Robert P Jones, president and founder of Public Religion Research Institute thinktank in Washington, said: “This is not one or two comments. It’s not a kind of one-off behaviour. This is like a longstanding publicly demonstrated orientation that Hegseth has. It’s not just a glorification of violence but a glorification of violence in the name of Christianity and civilisation.”

The Hegseth-as-drunken-buffoon era is over. If he had not been in office, many bad things would still have happened, but not nearly as bad as all of this. And if he ever leaves, there is no reason to think that he would continue to be a shadow advisor to Trump. Out would mean out.

So it is time for RFKJr to move over, because there is a new menace to society at the door. And while they are getting Hegseth setttled, they should leave space for Blanche or some other current unknown to break into The Show.

- Neil H. Buchanan

Color Blindness as Judicial Tyranny

2026-05-20T07:00:00.000-04:00

From the very beginning of the Roberts Court in 2005, the Chief along with all the conservative justices except Anthony Kennedy (and for the last few months of her tenure, Sandra Day O'Connor), have been obsessed with imposing a uniform rule of color blindness on local, state, and national legislatures as well as public and private elementary and secondary schools, colleges, and universities. Roberts made his values known at the end of the first full term of his court when he wrote the following [in]famous sound bite in a landmark case prohibiting two cities from voluntarily addressing racially imbalanced schools: “the way to stop discrimination based on race is to stop discriminating based on race.” There are now six justices who hold this view.

There can be no debate that this country allowed formalized racial discrimination against non-whites for most of our history. From slavery to Black Codes to segregation to red-lining, the law allowed discrimination against racial minorities. Some people, like the current conservatives on the Supreme Court, feel that the best remedy for that historical evil is to prohibit any government actor from using race to further legitimate goals, including righting the wrongs of centuries of discrimination against non-whites.

Others, like the current liberals on the Court, following the paths of GOP-nominated justices Stevens and Blackmun, believe that the only way to get past racial discrimination is to use race-based remedies to address the effects of centuries of non-color blindness. As Blackmun once wrote, “In order to get beyond racism, we must first take account of race. There is no other way. And in order to treat some persons equally, we must treat them differently. We cannot -- we dare not -- let the Equal Protection Clause perpetuate racial supremacy.”

The Roberts Court has emphatically rejected the latter view, most recently in Louisiana v. Callais, in which the justices admitted that constitutional concerns over color-blindness played a major role in their [mis]interpretation of the Voting Rights Act. According to Justice Alito:

In considering whether the Constitution permits the intentional use of race to comply with the Voting Rights Act, we start with the general rule that the Constitution almost never permits the Federal Government or a State to discriminate on the basis of race. Such discrimination triggers strict scrutiny, and our precedents have identified only two compelling interests that can satisfy that standard. One compelling interest ... is avoiding imminent and serious risks to human safety in prisons, such as a race riot. The only other compelling interest we have found is remediating specific, identified instances of past discrimination that violated the Constitution or a statute.

How to fight centuries of racial discrimination with continuing lingering effects is not the subject of this post. The point is that nothing in the constitutional text, its history, or the country’s traditions answers that question. Therefore, the Court should defer in all but the most extreme cases to elected leaders and school officials who believe that race-based remedies, such as majority-minority districts or affirmative action educational programs, are tools that are needed to address both the horrors of our past and the effects of that past on the present.

Let's start with the constitutional text. The phrase color-blindness does not appear anywhere in the Constitution. One might think that for alleged textualists this void would be a problem. In fact, the word race doesnot even appear anywhere in the relevant texts the Court waves at in its cases imposing color blindness on every unit of government in America. There is simply no textual basis for the rule.

History fares no better. There is no persuasive account of the Reconstruction Amendments that suggest their original meaning was to prohibit the use of race to address longstanding legalized racial discrimination. The literature on that point is voluminous and persuasive, which probably explains why Justice Antonin Scalia, perhaps the loudest proponent of color blindness other than Justice Thomas, never addressed the question of the original meaning of the Reconstruction Amendments as it pertained to color blindness even though he preached that rule in case after case.

In SFFA v. Harvard, the Court ended affirmative action based largely on its rule of color blindness, with the majority opinion conducting no originalist analysis. Justice Thomas did write a concurring opinion making historical arguments relying almost exclusively on two misleading and unpersuasive amicus briefs, but his opinion was so terrible that no other justice joined it. Given the originalist chest thumping of Justices Gorsuch, Kavanaugh, Barrett, and more recently Alito, one would think those justices would have been happy to sign on to Thomas’s concurrence. Yet, they did not, probably because it was riddled with historical errors.

The Roberts Court has recently taken a turn to tradition in some of its constitutional cases. But there is no tradition of color blindness in America. First, there was slavery. Then, from the late nineteenth century to 1954, “separate but equal” was the law of the land. Segregation lasted for at least a decade after that, and then affirmative action became prevalent until the Court ended it in SFFA in 2022. Majority-minority redistricting continued until Callais was decided a few weeks ago. This country has never, ever been color blind. It is an aspiration, not a tradition.

If there is no text, history, or tradition supporting color blindness as a judicially imposed rule, where does it come from? The answer should be obvious: from the justices’ personal values, ideologies, and politics. If the Roberts Court justices were transparent about why they are doing what they are doing, that would be one thing. In that situation, we could have a useful debate about the pros and cons of color blindness as a way to move past race.

But you will not find such an admission in the Court’s cases. All we have are unexplained sound bites that the Constitution simply prohibits the use of race as a tool to fight racial discrimination. Chief Justice Roberts’s conclusory assertion that the way to stop discrimination based on race is to stop discriminating based on race provides no supporting analysis. But even as an example of living constitutionalism at its most extreme, that idea is highly contestable because the government using race to make up for past sins cannot be reduced to “discrimination based on race.” A more persuasive description would be the government “using race to make up for country-wide illegal behavior over the centuries based on race.”

The Court’s adoption of color blindness as a blanket rule for all fifty states and the federal government is just as indefensible as a matter of constitutional law as Roe v. Wade’s identification of abortion as a fundamental right. Neither can be justified by reference to text, history, or tradition, and both are controversial constructions of imprecise text and contested historical accounts. Since all of the conservative justices who have embraced color-blindness are on record as strong critics of Roe because that decision was not based on text, history, or tradition, the hypocrisy is plain. The Constitution no more forbids the government from using racial tools to address the effects of racial discrimination than it forbids the government from outlawing abortion. Color-blindness as a constitutional rule is nothing more and nothing less than the ideological preference of a majority of the current Supreme Court. It is, simply put, judicial tyranny.

Eric Segall

Realistic Assessments of the Real-World Importance of Gerrymandering

2026-05-19T17:08:00.791-04:00

I will offer below some updates on the ever-changing US situation regarding the effects of gerrymandering on the 2026 midterms. Spoiler alert: It is still looking good for Democrats overall -- though definitely bad for Black Democratic officeholders, due to the recent dirty deeds of the Supreme Court. Before I get there, however, it is worth looking back on some very recent history.

In late 2022, after the Republicans regained control of the House of Representatives in that year's midterm elections, I planned to write a series of columns under the blanket title "Gerrymandering is the Only Thing that Anyone Should be Talking About." I never wrote those columns, because I had at that point begun a process that would completely disrupt my life for several years, but my intended point was a valid one.

Recall that in the first two years of the Biden presidency, the Democrats controlled both houses of Congress. True, the toxic dyad of Joe Manchin and Kyrsten Sinema made the US Senate the place where attempts to save democracy went to die, but at least those two did not switch parties and hand control back to Mitch McConnell and his wrecking crew.

The House flipping in 2022 meant that the second half of Biden's term would be insane, most obviously because House Republicans would immediately hold the world hostage by contriving another debt ceiling crisis. (They did.) And this was especially infuriating, because the switch in party control was entirely explainable as a result of gerrymandering. If the Republicans had picked up only four seats instead of nine (in an election that was supposedly going to be a "red wave"), Democrats would have held their majority, which would have kept the hapless Kevin McCarthy and then the odd-doesn't-begin-to-describe-him Mike Johnson out of the Speaker's chair.

In 2024, even as barely enough voters pulled the lever against the woman of color at the top of the ticket (while more than enough others stayed home entirely), the election that Donald Trump's people immediately claimed was a landslide saw Democrats actually pick up a seat in the House, which is why the Republicans' majority is so slim right now -- so slim that last year Trump ordered Elise Stefanik to stay in her seat rather than become UN Ambassador, after which he completely predictably turned against her and ended her political career.

This very recent history is worth revisiting for a number of reasons. One is that New York State saw its Democratic leaders single-handedly make the negative difference, first by completely screwing up post-2020-census redistricting and then managing to lose winnable races against the likes of George "Would I Lie to You" Santos. Earlier this year, I wrote about Mike Lawler, a supposedly moderate NY Republican who must surely have pulled a muscle after stretching for one of the most ridiculous bothsidesist claims ever, asserting in a NYT op-ed: "The loudest voices on each extreme have retreated to their usual corners. They have an interest in keeping our immigration problems unsolved and politically divisive." In my column, I asked: "Who, pray tell, are the equivalents on the 'left extreme' who do not want to solve the US's immigration problems?" The man is a pompous fraud, now trying to get Trump to save him.

And who did Lawler beat in 2022 to become part of Donald Trump's cult in the House? Sean Patrick Maloney, who managed to lose to Lawler by 0.6 percent, even though Maloney was a five-term incumbent and the chair of the Democratic Congressional Campaign Committee -- yes, the committee tasked with winning the House. My point is that Democrats were definitely in a position to hold the House that year, even with all of the asymmetric gerrymandering that they had to overcome. But my larger point, of course, is that there was all of that asymmetric gerrymandering to overcome.

The other thing to recall -- or, for most people, to learn for the first time -- is that gerrymandering going into the 2022 elections had in fact been litigated in several states, with the Republicans losing, but the gerrymandered seats were never un-gerrymandered. As Democracy Docket later pointed out: "In 2022, voters in six states cast ballots in congressional districts that have been ruled in violation either of the 14th Amendment, Section 2 of the Voting Rights Act (VRA) or state constitutions." In one of those states, Ohio, the illegal maps persisted into 2024, with Samantha Hendrickson of the Associated Press writing in 2023:

The legal dispute has been going on for two years, with the court rejecting two separate congressional maps and five sets of Statehouse maps — describing districts for the Ohio House and Senate in Columbus as gerrymandered in favor of Republicans.
Despite the maps being deemed unconstitutional before the 2022 elections, they continue to be used due to Republicans essentially letting the clock run out after refusing the court’s order to write up new, fairer maps by the prescribed deadline.

Meanwhile in Wisconsin (which is not one of the six states analyzed in that Democracy Docket piece), the state adopted "the original maps [that] the Republican controlled legislature passed. Thus, despite [Democratic] Gov. Evers veto, the maps passed by the Republican controlled legislature were implemented for the 2022 elections."

Relying on the so-called Purcell Principle, the US Supreme Court ruled in 2022 that Alabama's unconstitutional maps could not be redrawn because we were too close to Election Day, such that it supposedly would cause chaos and confusion to switch to ... you know ... maps that do not violate the Constitution.

I cannot wait to read the excuses that the Roberts Court will soon extrude to support Republicans' extreme reaction to last month's VRA-killing Callais decision, with Republicans around the country (especially in the Deep South) re-re-re-gerrymandering as we speak -- even as the 2026 elections are much closer in time than the previous situations in which it was supposedly too late to do anything.

In my recent writings about gerrymandering, however, I have argued that if elections to fill gerrymandered seats are still anything close to actual elections, it continues to be possible for wave elections to overcome all of the bad-faith redrawing of maps by anti-democratic Republicans and their appointed jurist-politicians. (See, e.g., Hungary, 2026.)

In particular, my April 30 Dorf on Law column included a hypothetical example of a state with a voting history in which 52 percent of voters are Republican. I showed that such a state could be gerrymandered such that 8 out of 10 districts are so solidly Republican that it would take 15 percent of the voters to switch from Republican to Democrat for Democrats to win any of those seats. Republicans could even set themselves up with 9 out of 10 safe districts, which would still only be in danger if eight percent of voters switched parties.

But if the Republicans tried to go for the full sweep, they could lose everything -- that is, all ten seats -- if only 2+ percent of voters switched. (I said three percent in that column, but I was rounding up.) That is why some people are calling the Republicans' feeding frenzy this year a "dummy-mander," because it is certainly looking like voters are swinging toward Democrats in congressional races in large numbers.

All of my analysis there was, however, merely a stylized example to illustrate how this could play out in surprising ways. In the real world, how close are we to seeing gerrymandering blow up in Republicans' faces? As I noted above, in a very important sense this is not the most important question coming out of the Court's assassination of the VRA, because Black representation in Congress will almost completely disappear as states of the Confederacy push out their last majority-minority Democrats. I am not in any way trying to ignore or diminish that historic injustice. If there is to be a path forward that could involve reversing that injustice, however, it will not happen if Republicans retain control of Congress after this year.

In any case, Paul Krugman brought the pollster extraordinaire G. Elliott Morris back for a substack interview this past Sunday, and Morris drew on the most evidence-based estimates that he could find to answer the question of just how much harder the midterms will be for Democrats in light of recent setbacks. Note especially that Morris offered his analysis after the Republicans on the Virginia Supreme Court struck down the ballot measure that would have allowed the Democrats to score a net pickup of four US House seats from the Commonwealth.

As an aside, Morris is the pollster who recently concluded that the entire notion of "moderate" voters is a myth, as I described in a column two months ago. His analysis showed that the Biden/Schumer-style centrist Democrats' obsession with ideological moderation is based on a complete misunderstanding of how swing voters think. That is not directly relevant here, but it is worth repeating as often as possible, because the Democratic Party as a whole is still run by people who are certain that American voters are ideologically conservative. Still wrong, but still certain.

But back to the gerrymandering arithmetic. Morris explains the apparent net effect of all of the gerrymandering efforts to date (including those setbacks for Democrats in Virginia and elsewhere): "If you add up all this, then Democrats are down about six seats [because of] the gerrymandering wars that Donald Trump started last year. And that could be potentially decisive in a close race." He did, however, begin the interview by saying, "Big picture is: as long as Democrats are still winning the popular vote by four points, they’re still taking back the House of Representatives." He eventually ran through the confusing thicket of changes in all of the relevant states, reaching this conclusion:

I think the 2026 election will be significantly pro-Democratic, and that the gerrymandering won’t matter. It won’t matter in terms of who wins the majority of the seats. Democrats will still be down six seats, at least, from where they should be. But if they’re gaining twelve, then, you know, they’re still managing to recapture the House because it was so close last time. Republicans only had three extra seats at the last election. So it’s a pretty easy wave election for the Democrats. But they’ll still be down seats, like they’re still deprived of representation in the South.

In response to a question from Krugman about the supposed dummy-manders, Morris said this:

Republicans basically went after five districts in Texas. Maybe two or three of those are highly susceptible to a dummy-mander. In which case, if you do the math and Latinos move 20 points toward the Democrats, and everyone else only moves ten points to the Democrats—assuming Latinos are moving twice as much as everyone else, which is pretty close to what happened in the 2025 elections—then Republicans only gain two seats out of Texas, but they’re still gaining seats. So there is a possibility that they have drawn themselves too thin in the case of a big Latino backlash. But they’re just subtracting some seats that they could have otherwise gained. So it’s not the fact that they’re going to lose overall in terms of the overall gerrymandering. In other words, they’re still coming out ahead.

This is an important point, because Morris is careful not to say, "Well, Republicans' efforts to end democracy won't matter if they lose the House." He is saying instead that they will succeed in stripping representation from many people, but possibly not as many as they thought they could. And that is not merely a theoretical point, because he adds that "more importantly, in 2028, when we’re not expecting Democrats to have such a large wave[, t]hen we’re expecting a much closer election. And in that 2028 scenario, this gerrymandering could give Republicans the majority, even if Democrats win the popular vote."

So even if things go Democrats' way later this year -- and, as I must continue to emphasize, only if Trump and the Republicans actually allow a Democratic majority to be sworn in and take control of the chamber on January 3, 2027, which is unlikely -- the "People's House" will continue to elect enough candidates who do not represent the American people that they could again be in the position that they are in today, not propelled into power by the people's voice but by overcoming it.

The title of this column promised realism, and there we have it. The House (and many, many state legislatures) have been gerrymandered for years, the Democrats have until recently failed to respond, and by now it might be too late, even if this year's elections go as the current polls seem to suggest.

- Neil H. Buchanan

Addressing Long-Term Problems With Our Free Speech Infrastructure Without Empowering The Autocrats (cross-posted at The Knight Institute website)

2026-05-18T07:00:00.000-04:00

N.B. As readers may recall, I currently serve on the steering committee of the Reconstructing Free Expression initiative of the Knight Institute. As part of our work, we are holding a number of day-long meetings with people from diverse relevant backgrounds to brainstorm both diagnosis and treatment. For these meetings, participants, including steering committee members, produce short think-pieces to jump-start our conversation. My salvo for the first convening appeared on the Knight Institute website and was cross-posted on this blog in February. Below you will find my essay for the second day-long meeting, which occurred two weeks ago. It can also be found on the Knight Institute website (with the title below).

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Support Local Journalism, Expand the Definition of Fraud, and Guard Against Boomerang Effects

Two broad categories of problems plague the information ecosystem of the United States: (1) long-term problems occasioned by technological changes over the last three decades; and (2) what one can only hope will prove to be short-term problems occasioned by the ascension to power of an authoritarian presidential administration that does not value freedom of speech. In this essay, I suggest that some efforts to address the first sort of issue risk exacerbating those in the latter category. I nonetheless propose two interventions that might be worth the risk.

(1) The Business Model Problem

A healthy information ecosystem requires actors who investigate and report on the activities of government officials and others—in a word, journalists. Beginning with the launch of Craigslist in 1995 and accelerating with the rise of advertising on Google and social media platforms, classified ads, which traditionally accounted for thirty percent of the revenue for local newspapers, dried up. Subscriptions also declined, as erstwhile readers turned to the internet for free alternative sources of (often unreliable) information. These and other factors hit local journalism the hardest, creating local “news deserts” that have been widening for two decades.

One partial response is public funding. And indeed, for a long time, that was an important piece of the puzzle, especially in rural areas, where funding from the Corporation for Public Broadcasting (CPB) accounted for a critical portion of local television and radio stations’ revenues—as high as 97 percent in one rural Alaskan community. However, Congress eliminated CPB funding in 2025, and with nothing in the till to distribute, earlier this year CPB’s board voted to dissolve itself.

If and when Congress and the administration change hands, it will be tempting to resurrect CPB or re-create something like it. I would not oppose such a move, but it carries risks. In stable constitutional democracies, publicly funded news services such as the British Broadcasting Corporation (BBC) and the Canadian Broadcasting Corporation (CBC) make a healthy contribution to public discourse, providing honest and nonpartisan news reporting. However, in the hands of an autocrat, government-funded news organizations typically serve as sources of propaganda.

Seen in this light, the elimination of CPB funding, while harmful, was not as harmful as one of the alternatives: continued funding but on condition that the recipients of government largesse toe the party line. Such moves can be and have been used even while the authoritarian regime purports to respect the independence of journalists. Examples from other countries readily come to mind, but so do domestic ones. When the Defense Department began exerting greater control over Stars and Stripes earlier this year, it claimed that the news organization would continue to “operate with editorial independence,” while it underwent a “modernization” under which it would no longer focus on “woke distractions.”

To be sure, it is probably easier for the government to exert control over a house organ like Stars and Stripes than over independent local television and radio stations, but only slightly. President Trump filed frivolous lawsuits against ABC News and CBS News but nonetheless obtained multi-million-dollar settlementsbecause they feared that his administration would otherwise withhold regulatory approvals vital to their business. He or a similarly autocratic successor would have little difficulty finding and using leverage over much smaller news organizations.

The upshot is not necessarily that a future, less autocratic, government should refrain from funding journalism. Rather, the point is that any such efforts should be undertaken cautiously, with eyes open to the risks. Lawmakers should consider mechanisms to mitigate those risks, such as independent funding streams not subject to presidential control. Finding such mechanisms will be difficult if, as widely expected, the Supreme Court invalidates nearly all independent federal agencies in Trump v. Slaughter. Reliance on state rather than federal funding would be one possibility.

(2) A New Kind of Fraud

The decline of local journalism is not the only adverse impact of the internet on our information ecosystem. It has also led to the spread of misinformation and disinformation. Any successful effort to combat that phenomenon would necessarily be multi-pronged. Here I would suggest one prong: expansion of liability for fraud.

In most U.S. jurisdictions, civil or criminal liability for fraud is established by showing a deliberately false representation that is intended to and does induce reliance by the listener, causing damage to the latter. In some statutes, there is also a requirement that the fraudster obtain money or some other thing of value from the person defrauded. Yet despite the fact that we take part in an “attention-based economy,” purveying mis- or disinformation in exchange for monetizable attention has not been regarded as a species of fraud.

A 2022 student Note proposed that the Federal Trade Commission (FTC) could regulate “fake news” as a species of fraud that falls within its existing statutory mandate. But whether spreading mis/disinformation would be regulated by the FTC, made the basis for civil liability via common law actions, or defined as criminal or tortious by a new state or federal criminal or civil statute, liability would be subject to First Amendment limits. “Simply labeling an action one for ‘fraud,’” the Supreme Court stated in a 2003 case, does not suffice to take it outside the protection of the First Amendment. That’s fair enough. However, deliberate mis/disinformation that aims at capturing the readily monetized commodity of attention bears sufficient similarity to conventional fraud as to fall outside First Amendment protection.

I do not have the space here to address any of the details that would be necessary to implement a conception of fraud capacious enough to cover mis/disinformation. For example, to hold platforms liable, some amendment to Section 230 of the Communications Decency Act might be required.

Nor can I ensure that liability for mis/disinformation would not be weaponized by the likes of Trump or his political allies, who frequently claim that truthful reportage that puts them in a negative light is “fake news.” But that risk would be worth taking if we concluded that the autocrats already have more potent tools at their disposal.

Defamation liability is arguably such a tool. For example, for FBI Director Kash Patel to prevail in his defamation lawsuit against The Atlantic, which ran a story describing him as engaged in “bouts of excessive drinking” and other irresponsible conduct, he would need to show that the reporters and/or writers for The Atlantic acted with reckless disregard for the truth. That is the high bar set by New York Times v. Sullivan, but it is still lower than the bar for fraud: intentional falsehoods. However, there are other elements to a successful defamation claim, not least that the statement at issue be damaging to the plaintiff’s reputation.

By contrast, liability for fraud for mis/disinformation about a potentially limitless number of subjects could open the door to many more claims than defamation law now permits. Accordingly, liability for mis/disinformation as a species of fraud should probably be limited to some discrete and especially dangerous subset of such mis/disinformation, such as AI-generated images, videos, and sounds passed off as real.

* * *

Vincent Blasi has argued that the First Amendment should be interpreted from a “pathological perspective”—that is, to equip it “to do maximum service in those historical periods when . . . governments are most able and most likely to stifle dissent systematically.” I agree. Legal regimes that may be sensible in placid times can prove hazardous in authoritarian periods, such as the current one. However, the pathological perspective should be supplemented by an optimistic perspective that not only guards against autocracy but also fosters conditions for a robust democracy.

-- Michael C. Dorf

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