"[A]fter the flurry of hard-right rulings this June, many professors had their 'own personal grieving period.'"

"But they quickly turned toward 'grappling with how we teach our students' to understand the Supreme Court’s reactionary turn.... A professor must say what the court claims it’s doing, then explain what it is actually doing, which is often something completely different. This technique can disillusion students, leading them to ask why they’re bothering to learn rules that can change at any moment.... Students confront a legal system in a crisis of legitimacy led by an extreme and arrogant court. Still, they must slog on, most gathering substantial debt as they go, pretending that 'law' is something different from politics, a higher realm of reason and rationality where the best arguments prevail.... My father, Nat Stern, retired from a 41-year career at Florida State University College of Law in May.... When I asked him why he decided to retire, he told me that he had no desire to explain the Supreme Court’s conservative revolution as the product of law and reason rather than politics and power.... 'For the bulk of my career,' he said, 'I’ve felt I could fairly explain rulings and opinions that I don’t endorse because they rested on coherent and plausible—if to me unconvincing—grounds. In recent years, though, I’ve increasingly struggled to present new holdings as the product of dispassionate legal reasoning rather than personal agendas.'"

Writes Mark Joseph Stern in "The Supreme Court Is Blowing Up Law School, Too/Inside the growing furor among professors who have had enough" (Slate). 

I got there via David Bernstein at Instapundit, who says: "We all know that left-learning lawprofs would be dancing in the streets if SCOTUS were equally aggressive to the left. And indeed, while Stern portrays discontent with the Court as a question of professional standards rather than ideology, he does not manage to find a single right-leaning professor to quote in his article."

I remember just before the 2016 election, when I was making my decision to retire.

"'Hispanics' are underrepresented as attorneys, but are such subgroups as Cuban, Argentine, or Spanish Americans underrepresented?"

"'African Americans' are underrepresented, but is that true of, say, Nigerian Americans, who have among the highest incomes of all American groups? 'Asian Americans' overall do very well in educational achievement, but that's primarily because of the success of Chinese, Japanese, Indian, and Korean Americans. Are Vietnamese, Cambodian, Hmong, Bangladeshi, Pakistani Americans well represented in the American legal profession? I doubt it. In the white category, how many Appalachians wind up as attorneys are legal faculty? Cajuns? Yemeni, Iraqi, and Egyptian Americans (contrary to popular belief, all Arabs are counted as white)? If the ABA is truly concerned about underrepresented ethnic groups, is there a sound reason why someone of Argentine or Spanish descent should be of special interest to law schools because they (justifiably) check the Hispanic box, but not someone of Hmong or Yemini descent?"

From "The American Bar Association's Problematic Proposed 'Diversity, Equity, and Inclusion' Rules for Law Schools" by David Bernstein (The Volokh Conspiracy).

"Even if you believe — as David Bernstein states above — that the election didn’t turn on fraud, you should be concerned that so many people do."

"It’s important... that elections not only be free of fraud, but trusted by the vast majority, even among those who lose. We don’t have that, and the huge number of stories about potential election fraud that were running in mainstream media right up until election day indicates that if Trump had been declared the winner, Democrats would be running around screaming fraud. We need a system that is obviously trustworthy enough that the vast majority of people will trust it, and we certainly don’t have that. Other countries do."

Writes Glenn Reynolds, pointing to this post — also at Instapundit — by David Bernstein. 

From Bernstein's post: "There is no evidence of widespread fraud that could plausibly be said to have cost Trump the election, nor even a single state.... And all that is why Trump’s lawyers lost every single case they brought before judges of all parties and ideologies.... Even if you accept any of the not-completely-crazy theories I’ve seen of how the election was 'stolen,' at best that gets Trump to a narrow victory in the Electoral College. Yet the president continues to insist not just that he won, not just that the election was stolen, but that he won in a 'landslide.'... If the election process is a total fraud, then violence is to be expected. Even in the face of the violence yesterday, Trump, while telling the rioters to go home, also continued to insist that he really won in a landslide, thus continuing to foment violence."

"I would prefer to see us acknowledge openly that today we, who are judges rather than members of Congress, are imposing on a half-century-old statute a meaning of 'sex discrimination' that the Congress that enacted it would not have accepted."

"This is something courts do fairly frequently to avoid statutory obsolescence and concomitantly to avoid placing the entire burden of updating old statutes on the legislative branch. We should not leave the impression that we are merely the obedient servants of the 88th Congress (1963–1965), carrying out their wishes. We are not. We are taking advantage of what the last half century has taught."

Wrote 7th Circuit Judge Richard Posner, in Hively v. Ivy Tech Community College, which interpreted the 1964 Civil Rights Act to bar discrimination based on sexual orientation (by viewing it as sex discrimination).

Quoted in "The post-constitutional world of Judge Richard Posner," by Antonin Scalia Law School professor David Bernstein. The dispute about statutory interpretation is characterized as a constitutional problem on the theory that a court that gets too creative with its statutory interpretation is acting like a legislature and that ought to count as a violation of separation of powers.

"Imagine a photographer, who instead of being a conservative Christian, is a whole-earth hippie type."

"He tries to run his business consistent with his moral views. Among those views is his belief that circumcision is a violation of a child’s human rights. He has Jewish clients, but when one of them asked him to photograph his son’s brit milah (circumcision) ceremony, the photographer declined, stating that he won’t photograph circumcision celebrations...."

A New Yorker article about Supreme Court history makes a big error.

Says lawprof David Bernstein — who's written a great book that covers the era of history in question:

[Jill] Lepore writes, “In 1910, Taft appointed Hughes to the Supreme Court, where, as a champion of civil liberties, he often joined with Holmes in dissent.”...

For decades Holmes’s liberal acolytes and fans argued to the contrary, but it’s well-established at this point that he was no champion of civil liberties. Holmes did eventually become a defender of freedom of speech, but that didn’t occur until after Hughes quit the Court to run for president in 1916.

Much more detail at the link.

And here's the New Yorker article. For all the history, it's really another one of those articles — like the Jeffrey Rosen TNR essay we talked about yesterday — trying to shape public opinion around the potential Supreme Court opinion that strikes down the Affordable Care Act. Like Rosen, she says:

What people think about judicial review usually depends on what they think about the composition of the Court. When the Court is liberal, liberals think judicial review is good, and conservatives think it’s bad. This is also true the other way around....

And like Rosen, she ends with an embrace of the value that law and politics should be separate — even as, like Rosen, she nudges us to think that it's the conservatives on the Court who pose the threat:

The separation of law from politics... has proved elusive. That’s not surprising—no such separation being wholly possible—but some years have been better than others. One of the worst was 2000, when the Court determined the outcome of a disputed Presidential election. The real loser in that election, Justice John Paul Stevens said in his dissent in Bush v. Gore, “is the Nation’s confidence in the judge as an impartial guardian of the rule of law.”...

Federally, few rulings have wreaked such havoc on the political process as the 2010 case Citizens United v. Federal Election Commission, whereby the Roberts Court struck down much of the McCain-Feingold Act, which placed restrictions on corporate and union funding of political campaigns. Stevens, in his dissent, warned that “a democracy cannot function effectively when its constituent members believe laws are being bought and sold.”

That, in the end, is the traffic to worry about. If not only legislators but judges serve at the pleasure of lobbyists, the people will have ceased to be their own rulers. Law will be commerce. And money will be king.

That's a strange way to end it, since federal judges are appointed and don't have to run for election. The independence of the federal judiciary isn't threatened by Citizens United. The independence of the federal judiciary, if anything, produced Citizens United — in which the Supreme Court, stocked with election-free judges, struck down a federal statute that was an effort by elected officials to control who gets to speak during elections.

And since we're talking about New Yorker fact-checking, I don't like: "the McCain-Feingold Act, which placed restrictions on corporate and union funding of political campaigns." Citizens United struck down a restriction on spending on one's own speech. It wasn't about contributions to political campaigns, i.e., funding.

"No, the Supreme Court is Not Poised to Adopt a Radical Libertarian Agenda..."

"... and Certain Commentators Should be Embarrassed for Suggesting Otherwise."

And from Randy Barnett:

President Obama’s two statements urging the Supreme Court to uphold the Affordable Care Act came the week after the vote was presumably taken by the justices in conference.  Since then we have been subjected to a seemingly endless stream of pundits, professors, and politicians urging the Court for “nonlegal” reasons... to uphold the Act.  All of these statements presuppose that the conference vote was to invalidate the mandate, or there would have been no reason to speak now.  Hence, the specific pressure on Chief Justice Roberts by Senataor Leahy and Jeff Rosen is implicitly urging him to change his vote from that which he cast in the conference.

I think Randy is implying that the news of the vote leaked from the conference.

"So, we know one thing with almost 100% certainty: Elizabeth Warren identified herself as a minority law professor."

David Bernstein affirms:

We know something else with 90%+ certainty: (at least some) folks at Harvard were almost certainly aware that she identified as a minority law professor, though they may not have known which ethnic group she claimed to be belong to, and it may not have played any role in her hiring. 

But it gets even more interesting: once Warren joined the Harvard faculty, she dropped off the list of minority law faculty. Now that’s passing strange. When the AALS directory form came around before Warren arrived at Harvard, she was proud enough of her Native American ancestry to ask that she be listed among the minority law professors.... Once she arrived at Harvard, however, she no longer chose to be listed as a minority law professor.

If those are the facts, what should we infer? Being on the list of minority law professors served her interest in advancement, but the claim was weak and potentially embarrassing, so it was deleted... after she achieved what was the ultimate advancement (to Harvard Law School)? I'm just guessing. Do you have a more apt inference? In any event, it's a question that goes to honesty.

What was really going on in Lochner, that Supreme Court case the conventional wisdom tells us to revile?

Glenn Reynolds reviews David Bernstein's book "Rehabilitating Lochner: Defending Individual Rights against Progressive Reform ":

As is often the case with regulation, large bakeries didn’t mind the law governing maximum hours because they could hire multiple shifts. Small bakeries, with their smaller workforces, found compliance far more difficult. The statute also set limits on ceiling heights designed to put cellar bakeries out of business....

New York’s law, the Court held, wasn’t about health at all. Numerous exceptions and loopholes in the statute undercut that rationale, as did the absence of any evidence that baking was a particularly hazardous profession or that limiting the hours bakers worked had anything to do with the wholesomeness of bread. The majority weighed the state’s claims against scientific evidence, found them wanting, and concluded that the statute lacked sufficient justification when weighed against the freedom of contract protected by the Fourteenth Amendment’s due process clause. It was, said Justice Peckham, “a mere meddlesome interference with the rights of the individual.”

That was back when legislation had to meet the test of science — as assessed by courts. Do you want that back? Whether you do or not, it's certainly important to know what was really going on with the regulation that the Court struck down and how the understanding of a judicial opinion takes on a life of its own:

[A]n opinion that stopped a joint effort by large corporate interests and big unions to squash small businesses was somehow turned into the centerpiece of a narrative about the Supreme Court upholding big business at the expense of the little guy....

Judicial opinions are spun by interested parties. If you think you know which ones you're supposed to love/loathe, be suspicious!

“Whatever Israel does, Amnesty is still going to say it was acting illegally/violating human rights.”

David Bernstein paraphrases.

"Man, talking about 'literally' to mean 'figuratively' is sooo 2005."

A commenter scoffs at David Bernstein (linking here.

And someone else links to this:



So Bernstein didn't get the fun he'd hoped for out of quoting Jeremiah Wright's "When Obama threw me under the bus, he threw me under the bus literally!" and quipping "Obama Accused of Attempted Murder?"

And I'm glad I didn't bother with the usage humor yesterday when I quoted "I was literally transformed back to that little snot nosed kid who you met and inspired 31 years earlier..." Even though that's a much funnier image than a man crushed by bus wheels.