"The anti [Obergefell] forces will get Thomas and probably Alito. Roberts was strongly against at the time but..."

"...has been careful to treat it as legitimate precedent since. Gorsuch usually sides with religious litigants but also wrote Bostock, the most important gay rights decision in years, and Roberts raised eyebrows by joining him. Most people who know Barrett and Kavanaugh believe them to have zero appetite for reopening this issue. Trump isn't pushing for it. Granting cert takes four votes, overturning a case five. I don't see [Kim] Davis getting up even to three on the question of whether to overturn Obergefell. Each time I write a version of this prediction I get called rude names, as if I were consciously misleading people for some fell purpose. But as someone with real rights of my own at stake, I'm just trying to give you my honest reading. We'll probably know within three months whether the Court will hear Davis's case and if so on what question presented. Save your anger till then."

Walter Olson, quoted by Ilya Somin, in "Why the Supreme Court is Highly Unlikely to Overturn Obergefell in the Kim Davis Case/My Cato Institute colleague Walter Olson explains" (Reason).

Should we "save [our] anger" if we don't want Obergefell overruled? Even if that's unlikely, now might be a good time to demonstrate how much it would hurt, before things escalate.

Meanwhile, I'm interested in Olson's dipping into the archaic to write "I get called rude names, as if I were consciously misleading people for some fell purpose." Fell! Why not "evil" or "nefarious"?

One answer is that he was influenced by the last syllable of "Obergefell." I don't think one would do that consciously. 

I'd guess Olson felt motivated to sound deeply literary. Some historical examples of the adjectival "fell" from the OED):

1747 I will risque all consequences, said the fell wretch. S. Richardson, Clarissa

1812 And earth from fellest foemen purge. Lord Byron, Childe Harold

1813 His fell design. W. Scott, Rokeby

1847 Even the fell Furies are appeased. R. W. Emerson, Poems

"I myself have long been skeptical of the value of increasing turnout, and am also a longtime opponent of mandatory voting...."

"I think most people do not have a duty to vote, even in high-stakes elections. And I have argued that relatively ignorant citizens can often do more good by abstaining from voting than by casting poorly informed votes (though I am also skeptical of arguments that government should try to weed out ignorant voters, primarily because I doubt that it can be trusted to do so in an unbiased way).... I held those views back when increased turnout was generally believed to benefit Democrats, and I continue to hold them today."

Writes Ilya Somin, in "Increased Voter Turnout Now Benefits Republicans/Survey data shows relatively infrequent voters are significantly more likely to support the Trump-era GOP than those who vote more often. Will this change traditional left and right-wing attitudes towards mandatory voting and other policies intended to increase turnout?" (Reason).

ADDED: I've declined to vote a couple times, and I strongly defend the right to abstain. I responded to critics on November 3, 2020, in a post titled "I'll just say this once, Althouse. Abstaining from voting is neither courageous nor principled."

"But the Graham bill — like Democratic proposals for federal laws protecting abortion against state restrictions — is a reminder that key elements of both parties' bases..."

"... would be happy to enact a federal takeover of abortion law, if given the chance. If either party manages to get strong majorities in both houses plus control of the presidency, it could potentially happen. At that point, the courts would have to consider whether the Constitution really gives Washington such sweeping authority. The reasoning needed to uphold a federal abortion law would also allow Congress to forbid virtually any other medical procedure, and a vast range of other activities, as well."

Writes Ilya Somin in "Lindsey Graham's Proposed Federal Abortion Ban is an Unconstitutional Assault on Federalism - But it Might Fly Under Current Supreme Court Precedent/The problem is the Court's ultra-broad interpretation of Congress' power to regulate interstate commerce. But the justices might cut that back" (Volokh Conspiracy).

Click over there to see the discussion of the case law, which I think clearly establishes that the Commerce Clause supports legislation restricting abortion or creating a right of access to it. Graham's bill — if it advanced — would tempt liberals to argue for the conservative position on commerce power and conservatives to argue for the liberal position.

"When the court considers the Harvard and UNC cases, it would do well to reject the 'diversity' rationale entirely, or at least subject it to much tougher standards of review...."

"As one expert in an amicus brief supporting the plaintiffs pointed out, the 'Hispanic' or 'Latino' category lumps together such varied groups as Argentinians, Cubans, Mexicans and immigrants from Spain. 'Asian Americans'' include racial and ethnic groups that cover more than half the world’s population, such as Chinese people, Indians and Filipinos, among others. Such distinct groups as Arab Americans, native-born white Protestants and recent immigrants from Bulgaria are all classified as 'white.' 'African American' combines native-born Black Americans with immigrants from Africa and the Caribbean. Needless to say, these groups have vastly different histories. Lumping them into a few crudely defined categories makes a mockery of the idea that universities are genuinely pursuing diversity as opposed to engaging in gross stereotyping. Perhaps even worse, the diversity rationale could be used to justify all kinds of racial and ethnic preferences.... For many schools, however, the diversity rationale for racial preferences is likely a smokescreen for the real purpose: compensating minority groups that are victims of long-standing discrimination, particularly African Americans. This justification, which has largely been rejected by the Supreme Court, is much more logically compelling than the diversity theory."

Writes Ilya Somin at "Supreme Court affirmative action cases challenging Harvard, UNC policies are overdue/The Harvard suit features extensive evidence that the school’s admissions system discriminates against Asian American applicants" (NBC News). 

Somin says he has has "considerable sympathy" for the alternative rationale, but it's hard to imagine the Supreme Court switching from diversity to compensation for past discrimination, which it rejected as a basis for affirmative action long ago (in the 1970s). 

[T]o my knowledge I was the only Russian Jewish immigrant in my class at Yale Law School. Would 'diversity' justify Yale using ethnic preferences to make sure there was another the following year?

The words "make sure" load that question, but I think — as someone who has served on my law school's admissions committee many times — that it would be perfectly fine to read an applicant's file, find yourself on the line between yes and no, see that this person is a Russian Jewish immigrant, and go with yes. And that yes would be based on what the current doctrine requires — a prediction that this person's contributions will be beneficial to the class as a whole. It would not be based on the idea that Russian Jewish immigrants have been discriminated against in the past. 

How could I possibly assess all the various harms of the past and funnel the urge to compensate into this one applicant? There's no expertise to defer to. With diversity, there is a notion, however hazy, that the school's file-readers have some special intuition about putting together a good student body and making the classroom lively and full of challenging viewpoints. There's a mystique, a magic, a black box that the Court can decide to leave closed. I know many of you are scoffing at that box. But the easiest answer is to leave it closed, not to move to another rationale for affirmative action.

"My sense is that a law or regulation is at best an opening bid. Is it binding, legally or morally? Maybe..."

"... but the presumption should be neutral at best, or, realistically, highly skeptical. After all, laws and regulations are the products of legislators and bureaucrats, who are presumptively corrupt and dishonest. And everybody know that, really."

Writes Glenn Reynolds, commenting on Ilya Somin's "Martin Luther King on the Ethics of Resistance to State Authority/Georgetown philosopher Jason Brennan offers a valuable summary of King's thought on these issues." 

Somin's piece is at Reason. Excerpt:

"I think the Commission's summary of the case against court-packing (pp. 79-84) includes much stronger arguments than its overview of the case for it (pp. 74-79)."

"But then again, I myself am a longtime opponent of the idea. Readers can judge the arguments in the report for themselves. The report does reject arguments that court-packing is unconstitutional, such as that advanced in co-blogger Randy Barnett's testimony before the Commission (see also Joshua Braver's response to Randy here). The Commission's conclusion on this point reflects the dominant view among legal scholars, though Randy and Michael Rappaport have offered serious arguments on the other side. I wish they were right, but so far remain unpersuaded."

I'm reading "Biden Supreme Court Commission Issues Final Report/The report doesn't endorse court-packing or term limits. But it's generally more to the latter than the former. It also provides valuable overview of a wide range of SCOTUS-related issues" — by Ilya Somin (at Reason).

If Court-packing ever happens, it will be the Supreme Court that decides whether Court-packing is unconstitutional, and if this happens soon, with the current configuration of the Court, I doubt that "the dominant view among legal scholars" will matter much. 

I feel like quoting the Thoreau adage again — last quoted 10 days ago — "Any man more right than his neighbors constitutes a majority of one already." In this light, Randy Barnett is the majority. Or will be to any Supreme Court that finds itself on the receiving end of a packing plan.

From Barnett's testimony (linked above):

"Lo and behold, the great philosopher’s number was listed right there, next to those of mere mortals. But who should be the one to call Rawls?"

"No one volunteered for this daunting task. So Anjan nominated me. 'You should talk to him,' he said, 'because you guys have a lot in common.' The idea that a world-famous political philosopher would have anything in common with an obscure high school sophomore struck me as ridiculous. Still, a part of me was flattered by Anjan’s suggestion that I should be the one to call Rawls. So I let him persuade me. With trembling fingers, I dialed Rawls’ number, half-hoping that he wouldn’t be home. It turned out that Rawls was home. Somehow, I managed to work up the courage to explain who I was and ask my question [about an argument they wanted to make in a high school debate]. Rawls listened carefully, and then modestly admitted that he simply hadn’t thought about that issue before. Still, he stayed on the phone with me and talked about it for more than half an hour. I didn’t get much out of him that would be useful for the tournament. He really hadn’t thought about our issue before. Nonetheless, I was moved by Rawls’ thoughtfulness and even more by his willingness to treat a lowly high school student as an equal and take my questions seriously. He didn’t become impatient even when I took issue with one of his points. I still think that most of Rawls’ major ideas were probably wrong, brilliant though they undoubtedly were."

Writes lawprof Ilya Somin in "A Road to Freedom," which I'm noticing this morning because Somin is calling attention to Rawls's 100th birthday, which was yesterday. See "Happy 100th Birthday, John Rawls!/Today is the 100th birthday of the most influential political philosopher of the second half of the twentieth century" (Reason). 

Somin also calls attention to a commemoration of Rawls by Larry Solum (at Legal Theory Blog). Excerpt:

Rawls... spoke at the Association of American Law Schools annual meeting in New Orleans.... [Cass] Sunstein and Rawls engaged in an important exchange on the relationship between the ideas of public reason and overlapping consensus and Sunstein's similar notion of incompletely theorized agreement. After the lunch following the lecture, I remember that Rawls expressed a desire to gamble but no one else wanted to go! This moment haunts me still — surely I could have found time to accompany Jack (as he was known to his friends) to the Riverboat Casino for a few hours. Time passes. It is now the 100th anniversary of John Rawls birth....

I would especially love to see comments that connect Rawls's "Theory of Justice" to the topic of gambling. 

Also, feel free to imagine fictional scenarios that parallel Solum's missed opportunity: You're in some city where you intersect with a famous person who wants to do something that you wouldn't do if your usual travel companion suggested it, but you really ought to do because you'd have the chance to spend more time with this famous person.  How would that go?

And I'd love to hear about times when you were a high school student and you got some real conversation time with an eminent person you were surprised would talk to you at all.

Biden's Judicial Reform Commission is unlikely to recommend Court-packing.

According to Ilya Somin (at Reason). 

But it would be wrong to think that the court-packing issue will simply go away. Over the last few years, the once-unthinkable proposal has clearly become part of mainstream political discourse on the political left. Thanks in part to the bad-faith behavior of Republicans (where the party first claimed it was wrong to vote on a Supreme Court nominee in an election year in 2016, and then took the completely opposite stance when it became convenient in 2020) the "Overton Window" on this issue has moved. 

"Those eggs richly deserve to be crushed."

The claim that DACA is illegal is a central focus of the Trump admin's justification for repeal. While Trump may win DACA cases even without this argument, the administration has put a lot of eggs in this basket. Those eggs richly deserve to be crushed. https://t.co/wuSHHg8fu9

— Ilya Somin (@IlyaSomin) November 12, 2019

And here's the NYT article on today's oral argument, by Adam Liptak, "Supreme Court Appears Ready to Let Trump End DACA Program/The justices are considering whether the Trump administration can shut down a program that shields about 700,000 young immigrants from deportation." Excerpt:

"Of course, it is possible that recent liberal praise for constitutional constraints on federal power will prove to be an example of 'fair-weather federalism'..."

"... the tendency of both left and right to rely on federalism whenever their opponents control the White House, only to jettison it when they themselves are in power. Conservatives, for instance, used constitutional federalism as a tool against the Obama administration but often ignore it under Trump. But there may be a trend here that goes beyond short-term partisanship. Liberals and conservatives alike can benefit from stronger constraints on federal power. Each party can gain from protecting local diversity and experimentation, and from the insurance federalism provides in times when its opponent hold the reins of power in Washington. Left and right can agree on the need for substantial constitutional limits on federal power, even if they differ on exactly how tight those limits should be."

Writes Ilya Somin in "How liberals learned to love federalism/The left was skeptical of giving power to the states. Until the Trump era" (WaPo).

This is the subject I wrote about for 30 years when I was in the law professor game.

The sanctuary cities issue has the left inspired about federalism.

There's Jeffrey Rosen in the NYT, "States’ Rights for the Left."

IN the wake of the presidential election, as Democrats realized that Republicans will soon control all three branches of the federal government, progressives disinclined to secede from the Union rediscovered another exit strategy: states’ rights.

Mayors in several so-called sanctuary cities, including Los Angeles, Oakland, Chicago and New York, immediately reaffirmed their commitment not to work with federal immigration officials in detaining and deporting illegal immigrants....

More detailed, doctrine-wise, is Ilya Somin in WaPo, with "Federalism, the Constitution, and sanctuary cities," explaining Printz v. United States (the anti-commandeering doctrine) and NFIB v. Sebelius (the limit on using the spending power to coerce compliance).

This is the main subject I wrote about when I wrote for law journals. See, e.g., "The Vigor of Anti-Commandeering Doctrine in Times of Terror." My experience was that liberals and lefties got annoyed at the suggestion that doctrine from conservative Justices could serve liberal causes.

ADDED: The post title is not intended to imply that Ilya Somin is himself a man of the left. And he now has a newer post: "Trump, federal power, and the left – why liberals should help make federalism great again."

Ilya Somin on "Judge Posner’s troubling explanation for his shift on same-sex marriage."

"Posner’s argument suggests that courts should only enforce constitutional rights when majority opinion is on their side, or at least not too strongly opposed...."

Under Posner’s approach, judicial enforcement of constitutional rights would only occur when it is least needed – when public opinion supports it and there is at least a decent chance that the political process will protect the right on its own. If anything, judges should be especially careful to enforce constitutional rights that are unpopular, since those are the ones that are least likely to be protected otherwise. If it is indeed true that “[t]he arguments against same-sex marriage were never strong,” then gays and lesbians should not have had to wait until those rationales became unpopular, for judges to rule against them....

There is no question that judicial decisions are often influenced by changes in public opinion.... But recognizing that empirical reality is very different from offering a normative justification for judicial nonenforcement of unpopular rights....

"Exploitation of ignorance was a standard political tool long before Trump decided to run for president."

Writes lawprof Ilya Somin.

It was not Trump but the far more respectable President Obama who secured passage of his signature health reform law in large part by manipulating what Obamacare architect Jonathan Gruber called “the stupidity of the American voter.”...

The problem is not that voters are stupid, or that accurate information is unavailable. Rather, for most voters, political ignorance is actually rational. No matter how well-informed you are, the probability that your vote will change the outcome of an election is tiny... [Most Americans] have an intuitive sense that there is little payoff to carefully studying political issues...

[E]ven when [Trump's] star fades, the political ignorance that fueled his rise will remain, ripe for exploitation by other candidates and interest groups. That, far more than his crude rhetoric, is the truly frightening reality revealed by The Donald.

The best summary of what Prof. Somin is saying is...

Democrats are just as bad as Republicans.

Trump is doing us a service by prompting us to see how stupid we are.

The reason we're so stupid is, ironically, because we're so smart.

Could everybody please be a little more careful?

 

pollcode.com free polls

"Lawsuit challenges constitutionality of male-only draft registration."

"The Supreme Court previously upheld the constitutionality of male-only draft registration in the 1981 case of Rostker v. Goldberg. However... that ruling was partly based on the theory that women would not be as valuable draftees as men in an era when the armed forces excluded women from most combat positions. Obviously, that logic is no longer valid.... Like most other constitutional law scholars, I think that Rostker was a dubious decision, and would not shed many tears if it were overruled...."

Writes Ilya Somin.

Personally, I think there is a government interest in excluding women from the draft. If we're ever in a situation in the future where we need to resort to the draft, it will be very different from our present-day America, and I suspect that there will be a need to preserve what is unique about females.

That case about raisins is "an important victory for property owners."

Ilya Somin says about today's new opinion in Horne v. Department of Agriculture.

Chief Justice Roberts writes the main opinion, joined by Justices Kennedy, Scalia, Thomas, and Alito and in part by Justices Ginsburg, Breyer, and Kagan. (Only Justice Sotomayor dissents.) Excerpt from Roberts:

There is no dispute that the “classic taking [is one] in which the government directly appropriates private property for its own use.”...  Nor is there any dispute that, in the case of real property, such an appropriation is a per se taking that requires just compensation.... Nothing in the text or history of the Takings Clause, or our precedents, suggests that the rule is any different when it comes to appropriation of personal property. The Government has a categorical duty to pay just compensation when it takes your car, just as when it takes your home.

And just as when it takes your raisins.

ADDED: In case you're wondering if the Justices talked about the notorious Kelo decision. The answer is, one Justice did. Justice Thomas wrote:

The Takings Clause prohibits the government from taking private property except “for public use,” even when it offers “just compensation.” U. S. Const., Amdt. 5. That requirement, as originally understood, imposes a meaningful constraint on the power of the state—“the government may take property only if it actually uses or gives the public a legal right to use the property.” Kelo v. New London, 545 U. S. 469, 521 (2005) (Thomas, J., dissenting). It is far from clear that the Raisin Administrative Committee’s conduct meets that standard. It takes the raisins of citizens and, among other things, gives them away or sells them to exporters, foreign importers, and foreign governments. 7 CFR §989.67(b) (2015). To the extent that the Committee is not taking the raisins “for public use,” having the Court of Appeals calculate “just compensation” in this case would be a fruitless exercise.

"To the extent that large-scale use of prosecutorial discretion is ever appropriate, it is surely so..."

"... in the case of helping people whose only violation of the law is fleeing poverty and oppression under terrible Third World governments. Few other offenders have such a compelling moral justification for breaking the law. I strongly support the legalization of marijuana and the abolition of the War on Drugs more generally. But illegal immigrants violating the law to escape Third World conditions are considerably more deserving of our compassion than college students violating it to experiment with marijuana or other illegal drugs. If exemption from prosecution is acceptable for the latter, it should be permitted for the former too."

Writes Ilya Somin in "Obama, immigration, and the rule of law."

"Nobel Prize winner Gary Becker, one of the greatest economists of the last century, passed away today.

"Gary Becker did pathbreaking work on numerous issues, including the economics of discrimination, criminal behavior, the family, and the dynamics of political interest groups. Becker pioneered the application of economic analysis to questions that were previously considered the exclusive domain of sociology, law, and political science. He had an enormous influence on scholars in other fields, as well as economists. Several of his books and articles are foundational works for the field of law and economics."

Writes Ilya Somin.

"The Supreme Court Case That Could Clobber Public-Sector Unions."

Garrett Epps looks at yesterday's oral argument.

[The National Right to Work Committee argues] that permitting the [public-sector] unions to collect fees for representing non-members—the so-called “agency fee”—violates the First Amendment....

Since public employees work for government, everything they bargain about is political. Higher wages, better benefits, new work rules—all affect the state budget. Assessing fees from non-members thus requires them to pay for political speech.

All the expenses, in other words, are non-chargeable.

Scalia appeared skeptical of that argument, but it went over with three of the other four conservatives.

So liberal hopes hang on Scalia of all people. Epps extracts some quotes.

"Nonlegal Arguments for Upholding the Individual Mandate."

Ilya Somin describes and refutes arguments based on enhancing the Court's "legitimacy," avoiding the appearance of "partisanship," and avoiding "judicial activism." Actually, calling these arguments "nonlegal" is part of the refutation.

Any chance courts might say the West Hollywood ban on selling fur violates the Constitution?

Only in Ilya Somin's dreams:

If the law is challenged, judges will probably conclude that there is at least some “rational basis” for it, such as the need to protect fur-bearing animals from overhunting. Nor will it matter that the law bans the sale of fur clothing, but permits the sale of leather items. Such distinctions are also subject only to minimal scrutiny. Nonetheless, the debate over this case and others like it could help increase public awareness of the need to enforce constitutional protections for economic liberty.