Dorf on Law

Time 2020-11-13 20:04:59

Web Name: Dorf on Law

WebSite: http://www.dorfonlaw.org

ID:114972

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by Neil H. Buchanan This past Saturday and Sunday, when it briefly appeared that President-Elect Biden and Vice President-Elect Harris were going to be widely and quickly accepted as the legitimate victors in the election, I considered writing a column this week in which I would eat a considerable amount of crow -- and because I am a vegan, that would have been an especially repellent prospect. I have, after all, been loudly and consistently saying for years that Donald Trump would bring the end of the rule of law in America, that he would never leave office, and that we might even be a dead democracy walking. Saturday s celebrations seemed to have proven me wrong. Delightfully, deliciously, deliriously wrong, but wrong. Would that it were so.My new Verdict column [to be published tomorrow, at which point I will add a link] instead suggests that the Republicans are very likely now in the process of going through the mental gymnastics needed to support Trump s outlandish claim to being the rightful winner of the election. Just as Republicans have been horrified, then resigned, then willing to ignore things like the Access Hollywood tape, the Charlottesville equivalence, the Ukraine extortion attempt, and on and on, I argue that the current cover story about Trump needing time to accept reality is instead time being spent getting Republicans to adjust to his alternative reality.I do admit that there are still plenty of barriers to preventing the coup, but I continue to have much less confidence than others that those barriers will hold. And even if the legal barriers are not breached, Trump still has the military (which he is in the process of corrupting) and his Second Amendment people on speed dial.All of that is plenty scary, but I will use this column to discuss the election from a much more mundane perspective. That is, I want to discuss votes as if they actually matter. Yes, it is prosaic of me to continue to think of elections as the core of democracy, but bear with me. I want to discuss why Trump received so many more votes than I thought he would. It is an important question, and the logical mistake that I have been making until now is especially fascinating.by Neil H. Buchanan The transition to the Biden Administration is already looking less than certain, with Republicans once again enabling Donald Trump s autocratic instincts by refusing to acknowledge the clear victory by Joe Biden and Kamala Harris in this year s election. That is quite worrying, as I will discuss in my Verdict column on Friday. For now, however, let us imagine that Donald Trump will actually be evicted from the White House and that a new political reality will begin on January 20, 2021.As appealing as that idea is, the fact is that Republicans and weak-kneed Democrats will continue to work in lockstep -- not conspiratorially, but simply by following their respective political instincts in the same direction -- to prevent progress on the actual policy issues facing the country and the world.Yes, it will matter a lot whether the Democrats can somehow win both Georgia runoff elections for U.S. Senators, which would give them the bare minimum to control the Senate agenda and keep Mitch McConnell s hands off of the appointment process for cabinet members and federal judges. But even if the Democrats had ended up with 51 or 52 seats, the Senate was going to be a very difficult place, because too many of their members -- not only West Virginia s conservative Democrat Joe Manchin, but others as well -- buy into the wholly mistaken idea that America s is fundamentally a conservative polity.Where does the myth of America s DNA-level conservatism come from, especially given that it seems so easy to kill with overwhelming evidence? Why do so many people continue to reanimate this zombie? by Michael C. DorfWith the caveat that one can never say with 100% confidence how Justices will rule on a case based on their questions and comments at oral argument, I count at least five votes to reject the argument by Texas and the Trump administration for invalidating the entire Affordable Care Act. Chief Justice Roberts and Justice Kavanaugh very clearly signaled that they disagree with the claim that the individual mandate cannot be severed from the balance of the Act, while Justices Breyer, Sotomayor, and Kagan seemed inclined to rule against the challengers on multiple grounds. In addition, Justices Thomas and Barrett were skeptical of some of the arguments for standing. Accordingly, I m going to assume for purposes of this essay that the challenge will be rejected and game out how the opinion(s) might be written.Spoiler Alert: I predict the case will be decided on standing grounds and that the Chief will write the opinion. by Sherry F. ColbHaving finally stopped hitting refresh on the electoral count on Friday, I decided to go out for a walk with my dog Blue and listen to the arguments in Fulton v. Philadelphia The case involves a Catholic organization that contracts with the government to help place children in foster care, and the question is whether the City may refuse to renew its contract with that organization because the latter refuses to consider same-sex couples for certification as potential foster families. In other words, though several Justices seemed unwilling to frame it in this way, the Catholic organization discriminates against gay men and lesbians applying to become foster parents.In an argument that would have been amusing if it were not so appalling, we kept hearing about how no gay couple (or possibly only one gay couple) has applied to the Catholic organization to be certified as foster parents. I do not recall hearing anyone say it, so I will: of course a gay couple would not apply to an organization that refuses to consider gay couples. I imagine few African American students applied to matriculate at Stonewall Jackson Academy. I would think that if no person in an excluded category even tries to use the services of an institution after the institution has advertised its unwillingness to consider that category, the reasonable person would conclude that the place is plainly guilty of discrimination. Several Justices, however, seemed to think that the absence of applicants indicates that any belief that the place discriminates is entirely speculative. If you scare away all of the ____ s, then nothing bad has happened yet. Perhaps we could introduce the Justices to the First Amendment concept of chilling effect. It s not just for speech.By Eric SegallTwas in another election, one of toil and blood;When Trumpism was a sickness and the road was full of mud;He came from a gold plated bathroom, a creature void of form;He spilled his bile all over us;And we entered into the stormNot a word he spoke was gentle, there was so much risk involved;Everything up to that point had been left unresolved; We tried imagining a place where it's always safe and warm, but 2016 was terrible, and we entered into the stormI was burned out from exhaustion, disgusted by the man; he divided us like no other, all across the land; He picked Pence as his VP, which was equally bad form, and back in 2016, we entered into the stormTrump put a wall between us, something had been lost; we took too much for granted, we got our signals crossed; we thought he d never win, but then we all were torn; and then in 2016 we entered into the stormHis judges walk on hard nails and Fed Soc picked them all; Trump's bluster was all show while his base heard his call; McGhan did the dirty work and blew his hateful horn; and in 2016 we entered into the stormOn many a private golf course, he avoided doing his job, while bargaining for his hotels, he remained a lethal slob; he took away our dignity and repaid us all with scorn, and in 2016 we entered into the stormIn cities across our country, Trump lied about our woes, He didn t care for our salvation and gave us a lethal dose; we offered up our innocence but got repaid with scorn, And in 2016, we entered into the stormBut then we turned around and Biden was standin' there;With Kamala right behind him, and silver in his hair, They came upon us so gracefully and took Trump s crown of thorns; Come in, they said so warmly, we'll give you shelter from the stormNow I hear delight across the land, people no longer so forelorn; music playing by the E Street Band, and a new era is born; we danced in the streets to celebrate, the hate at last all gone, Come in, they said so gratefully, we'll give ya shelter from the stormNow I'm livin' in a different country, it will be a different time;With Joe and Kamala in power, we ll walk a different line; I no longer worry for the children who in time will soon will be born, Come in they said so gratefully, we'll give ya shelter from the storm;Now we must all come together, a country for one and all, when we unite as one, we can surely avoid the fall, Joe and Kamala understand we must love one another and that's fine form; Come in they said so gratefully, we will give ya shelter from the storm. by Michael C. DorfNo, this is not simply a blog post arguing that the U.S. would be a better, more democratic polity if we elected our President via a national popular vote. I believe that. I support a constitutional amendment to make that change. Failing that, I support the National Popular Vote interstate compact as a means of circumventing the Electoral College (EC) as a second-best option for getting there. But I doubt that either change -- constitutional amendment or interstate compact -- will occur unless and until a Republican Presidential candidate clearly wins the popular vote but either loses or nearly loses the EC vote, because only then could there be enough of the state legislative support necessary for the change by either method.However, that s not what I want to say today. Nor do I simply want to complain that in 2000 and 2016 the clear winner of the popular vote lost the EC and that, pending the outcome of recounts, litigation, and shenanigans, there s still a chance that could happen again this year. The consequences have already been catastrophic because of the substantive results of the 2000 and 2016 Presidential elections. The catastrophe that is Trump needs no elaboration right now. And while George W. Bush was a normal President when measured against the yardstick of Trump, let s not forget that W was a bad President measured against non-psychopaths: he ignored intelligence that might have prevented the 9/11 attacks, launched an unnecessary war in Iraq that caused enormous suffering and spawned what became ISIS, and abandoned Americans to their fate during Hurricane Katrina.However, I m not going to lay the blame for disastrous policy and, in Trump s case, the broad sabotaging of our democracy as well, on the EC. Responsibility for the last four years rests with the nearly half of American voters who either supported Trump for the reasons that decent people find him intolerable or were so in favor of low taxes for the wealthy, deregulation, guns, and/or socially conservative policies on civil rights and abortion that they were willing to overlook Trump s manifest flaws. (I blame my fellow Americans much less for choosing Bush in 2000, when he ran as a compassionate conservative. ) Were Trumpism confined to the fringes, then the fairly small boost the EC gives to it would not make much of a difference.So what s actually wrong with the EC?by Neil H. Buchanan Although politicians and the media are understandably focused on the ongoing counting of votes in various key states, I continue to believe that nothing is going to stop the coup that Donald Trump has been advertising for years. He has already filed several of the lawsuits that will work their way up to his stacked Supreme Court, and in the end, it will not have mattered whether Biden won by a little or a lot. It was always going to end up in the hands of the Supremes.After all, even if Trump had lost Texas, Florida, and Ohio, there are fiercely pro-Trump Republican majorities running those state legislatures, supplemented by Republican governors. Those states could have decided (and Arizona, and possibly Georgia, might yet choose) simply to award their electoral votes to Trump, no matter who won the votes in their states. In addition, the key swing states of Wisconsin, Michigan, and Pennsylvania are all poised to see their legislatures attempt to validate the legislatures-only theory (which Professor Dorf again ably debunked earlier this week), under which their Republican-dominated state legislative branches ignore their Democratic governors and simply announce that they have the power to appoint Trump s slates of electors -- again, the voters be damned.Any or all of those moves will land in the Supreme Court, and they are much more bold than the current attempts to stop vote counts prematurely. Indeed, based on where things stand now, it appears that the courts will be essentially powerless to stop Biden from seeming to have amassed at least 270 electoral votes. I say that this appears to be the case because the Court could yet surprise us with a rule that says that partial counts on Election Day are the definitive outcome; but in any case, we are already in the process of litigating everything.Rather than predict what this Supreme Court will do, at least in the usual Supreme Court watcher mode that so many law professors love, here I want to ask a different question: Do any of the six Republican appointees to the Court want their roles to matter in the future, or are they willing to expend all of their institutional importance now in the service of something that they will not be able to undo? That is, are at least some Supreme Court justices interested in continuing to be relevant?

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