I was reasonably satisfied with Judge Kavanaugh’s nomination to the Supreme Court. I thought he was a smart, fair jurist. Although I did not agree with all of his lower court decisions, I appreciate that evaluating a judge based on whether I agree with his ultimate outcomes, as opposed to the strength and coherence of his legal reasoning, is detrimental to rule of law principles.
Continue reading “Do Not Confirm Judge Kavanaugh; But Do Not Sanction The Way He Was Treated”
The mixed reactions, on many aspects of the way we approach Dr. Blasey Ford’s allegations against Judge Brett Kavanaugh, track either politics or ideology in a way that should give every one of us pause.
At one end of the spectrum is Senator Mazie Hirono, who told men to “shut up and step up … do the right thing, for a change,” after Dr. Chrstine Blasey Ford’s allegations against Judge Brett Kavanaugh came to light. Blasey Ford released her story weeks after her allegations had been sent to Senator Dianne Feinstein, and days after the Senate finished its hearings on whether to confirm Judge Kavanaugh to the Supreme Court. Senator Hirono’s view is that, despite the impossibility of gathering meaningful statistics on how many reports of sexual assault are false, a woman is automatically to be believed regardless of evidence, and men, by virtue of their membership in a particular group, are all guilty by association and cannot contribute to meaningful dialog on this topic.
At the other end of the spectrum is Senator Mitch McConell, who wants to “plow through” with Judge Kavanaugh’s confirmation despite a credible accusation of sexual assault, who appears to categorize Dr. Blasey Ford’s coming forward as a partisan tactic to delay Judge Kavanaugh’s confirmation vote until after the midterm elections, who sees no need for further investigation on this topic. And, of course, there’s Donald Trump, who essentially called Dr. Blasey Ford a liar for failing to report her allegations 35 years ago, to either “her loving parents” or law enforcement.
The best case to both test the scope of the Supreme Court’s decision in Masterpiece Cakeshop and to answer its unresolved legal questions is, indeed, a new version of Masterpiece Cakeshop. Last month, baker Jack Phillips sued the Colorado Civil Rights Commission for another ruling against him and his bakery. Although Phillips received a narrow win in the original Masterpiece Cakeshop, the free speech claim in this new case is somewhat stronger, and the legal landscape has been altered in Phillips’s favor by the original case. Because this new case presents a free speech claim that can easily be distinguished from the sale of interchangeable goods and services, a decision in favor of Phillips is unlikely to seriously undermine civil rights and anti-discrimination laws.
The job of a Supreme Court Justice is replete with contradictions. The Court is accountable to the people, and the Senate uses its “advice and consent” power to approve nominees. However, the Court must be independent of the people, rendering judgment based on its interpretation of the law, instead of serving a political master or agenda. The Court must generally defer to the democracy, allowing elected legislators to dictate policy. But the Court must unflinchingly champion our constitutional rights, upending democratic will based on vague constitutional amendments that are subject to multiple interpretations.
The difficulty of navigating these contradictions, which focus solely on the abstract roles a Justice must play, is compounded by the task of deciding the substance of specific cases, which are complex, multi-faceted, and often technical. We need experts on the Court – experts at reconciling competing principles, experts at developing a sound, consistent judicial philosophy that can apply timeless constitutional rights to a changing society, and experts at understanding legal texts, structures, and systems.
The process of approving a Supreme Court Justice should therefore be targeted to finding these sorts of legal experts, with sound judgment and impeccable analytical skills. We need Justices who understand that their decisions have human consequences, but who do not overly impose their own political sensibilities onto these consequences. Instead, the Senate confirmation hearings appear, based on the grandstanding of Senators on both sides of the aisle, to be a way of pandering to the basest instincts of the very people from whom the judiciary is designed to be independent.
To some extent, the political pandering of the confirmation hearings is due to the fact the Court has appropriated a great deal of power, interpreting the Constitution to include provisions far beyond the text. To some extent, our intractable partisan hackery problem is due to increased attention to the Supreme Court by citizens who either misunderstand or willfully ignore the role of the Court. Neither Democrats nor Republicans at this point want to unilaterally appoint a Justice whose jurisprudence does not well align with the general sentiment of their base. I propose a modest solution that could change the tenor of both the Senate confirmation hearings and the public’s thinking about the role of the Court.
After years of thinking about how best to teach law students to engage with legal concepts, I have a hypothesis that I would like to subject to analytical scrutiny. That hypothesis is this: One reason our political and cultural discourse is in such an angry, fractured state is because people are not being taught to think properly. Absorbing, assimilating, and evaluating information is a skill that can (and must) be taught. I will provide examples of our broken reasoning skills using two galvanizing populist figures.
No matter your political affiliation, I recommend you watch CNN’s Chris Cuomo practically beg Presidential Adviser Kellyanne Conway to admit that President Trump lied about not knowing when Michael Cohen was paying Karen McDougal and Stormy Daniels to keep secret the affairs between Trump and the two women. “The truth matters,” Cuomo implores. President Trump’s lying about this issue, despite the fact that his former attorney Michael Cohen has an audio tape proving that the President is lying, erodes public trust in the integrity of our democracy and in the nature of truth itself. Instead, Conway reiterates that the President said he is not lying, as if we should simply defer to the President’s word even when it is demonstrably false. This “because the President said so” logic further undermines the strength of our democracy. Perhaps worse, this logic undermines the elevation of truth as, in my view, the most important ideal of a functioning democracy and society.
Conway’s evasion and outright duplicity reminded me of others who unabashedly and directly lie, like Lance Armstrong, who repeatedly told the public that he did not take banned performance enhancing drugs but later confessed. Romantic partners can lie, about everything from whether they took out the garbage to whether or not they are intimate with other people. In order to allow for a clearer vision about how to talk about lying, below is a graph and a typology of the kinds of lies we tell, followed by an explanation of why I have categorized the lies as I have.
Continue reading “The Lies We Tell (Including the President)”
There’s a lot of useful advice going around about how to succeed in law school, how to take advantage of its myriad opportunities, and how to set yourself up for a happy and productive career. I have written about how to create a good law school outline, and how to read critically by using deductive reasoning. What is most enjoyable to relate, however, is why law school was the most enjoyable educational experience of my life. I loved law school so much. Every year I force myself to revisit the extraordinary experience of law school in order to better understand my students. What follows are some of the reasons law school was such an educational treat.
A few weeks ago, Vox ran an article arguing, based mostly on a preliminary study by Georgetown University’s Free Speech Project, that the campus free speech crisis is overblown. The article, like many popular media pieces describing academic research, is a bit misleading and overstates the conclusions of the studies it cites. The article also downplays the scope of the campus free speech problem, even given the data. But the article does require those of us who care about free speech values to reflect on the true nature of the “campus free speech problem.” I think its true nature lies in chilling self-censorship, partially caused by the extent to which schools lack meaningful intellectual diversity and cultivate an atmosphere where social justice exists in tension with genuine academic pursuits.
Continue reading “Evaluating and Treating the “Campus Free Speech Problem””
Have you ever wanted to know which first-year law school class epitomizes your personality? (I bet you do now.) Take this quiz and find out.
Results are below the jump.
The latest draft of my Essay, “Good Orthodoxy” and the Legacy of Barnette, is posted on SSNR. Here is the abstract.
This Essay applies the much-revered case of West Virginia Board of Education v. Barnette, which held that public school students may not be forced to stand and salute the American flag, to what I call the “good orthodoxy” context. In so doing, I hope to build a bridge between partisans on issues of free speech.
In good orthodoxy cases, the individual claiming a right against compelled speech seeks to overturn a law or policy that was designed to remedy the harms committed against or to otherwise benefit historically marginalized groups. These good orthodoxy cases are both similar to and different from Barnette, where the Supreme Court held that the state cannot compel “unanimity of opinion” in support of patriotism or nationalism. Using examples such as public accommodations laws that compel production of expressive goods, union dues for public sector unions, and diversity statements at public law schools, I will demonstrate how new groups of dissenters are created in response to policies designed to protect historically marginalized or disadvantaged groups — instead of laws designed to compel respect for authority.
Because of the differences between Barnette and the good orthodoxy cases, I argue that courts should be cautious before holding that the modern cases implicate pure speech, as opposed to expressive conduct or unprotected conduct. However, when pure speech is implicated, these laws or policies should be generally overturned as failing to satisfy strict scrutiny. Specifically, dignitary interests designed to protect individuals’ sense of acceptance in the community should generally not be considered sufficient to compel unanimity of opinion, and indeed, dignitary interests often indicate that what is being imposed is conformity to particular values.
Here is the link.
