Why Doesn't Trump Feign Humility?

by Michael Dorf

My latest Verdict column addresses the recent controversy over--ahem--Donald Trump's penis. I argue that while there is no precedent for a presidential candidate's explicit declaration that, as Trump put it last week, "there's no problem" with the size of his member, there are numerous precedents for political candidates and office holders attempting to project an image of male virility and strength as a basis for winning or maintaining public support. I invoke domestic and foreign examples, as well as evolutionary biology. I conclude by wondering how Trump's alpha-male routine would play in a general election campaign against Hillary Clinton. Spoiler Alert: I don't know.

Both Marco Rubio's initial "dick joke" about Trump and Trump's response have predictably provided fodder for pundits and comedians. As I note in the column, Rubio's move seems to have backfired; by descending to Trump's level, he undermined his claim to be running a positive campaign. That was predictable, but I do think the reaction is unfair to Rubio. He was obviously making a joke, first by invoking the long-running trope that Trump is a "short-fingered vulgarian," and second, by suggesting that the supposedly diminutive stature of Trump's digits implies a corresponding genital deficit. No one who watched the video of Rubio's Trump-roasting shtick could possibly think that Rubio was actually reporting that he had seen and measured Trump's penis, which he found to be abnormally small.

It. Was. A. Joke.

Trump's cringe-inducing performance on Saturday Night Live last fall included his recitation of the line, "I can take a joke," but his response to Rubio's dick joke and, well, just about everything else from the Donald, pretty strongly suggest that he has no sense of humor, at least not about himself. On the contrary, like many other bullies and egomaniacs, he is hyper-sensitive to criticism.

We are nonetheless left with something of a mystery. Most other egomaniacs craving public approval understand the value of at least feigning a bit of humility. Sports are instructive. Just about all professional athletes grew up as the best player on their team. Many of them--because of how broad the base and how narrow the top of the pyramid are--were the best player ever to play for their school or in their division. They are used to being adored. When they reach the professional level, most of them discover that they are, by pro standards, just average. It can be difficult after a lifetime of adulation to accept a kind of rarefied mediocrity, but most athletes master it. They figure out how to fake humility, even if they never really feel it. Indeed, the cliches that Crash feeds Nuke in Bull Durham are all about sounding humble. And as Mark Canha of the Oakland A's showed last year, they work!

So why doesn't Trump at least try to feign humility from time to time? I'll stipulate that Trump doesn't actually ever feel humble, but surely a candidate with so few qualms about saying things he knows to be false would be untroubled by the prospect of saying something humble-sounding even though it did not reflect his actual feelings. Accordingly, I am left to infer that Trump's unceasing braggadocio is calculated. He has apparently concluded that even an occasional transparently insincere "aw shucks" would dilute his appeal by conveying the appearance of weakness.

Nine, six, or even three months ago I would have said that this is a strategic error, but--along with most other observers--I have been surprised by Trump's staying power. I still think that when it comes down to it, more people are repelled by extreme arrogance than are attracted by it, but that might simply be wishful thinking.

What Would the Wannabe-Presidents Actually Do -- Especially a Non-Politician With No Attention Span?

by Neil H. Buchanan

With the possibility of an independent presidential candidacy now safely behind us -- Michael Bloomberg having honorably ruled out the possibility of enabling a Trump win in November, and Donald Trump being in too deep on the Republican side to do the necessary groundwork for a fallback plan -- we are now looking at three people who could plausibly be sworn in as President in January 2017: Hillary Clinton, Trump, and Ted Cruz.

Less plausible, but still possible, are Bernie Sanders, John Kasich, and the fast-fading Marco Rubio, although the latter two are only imaginable after a brokered convention.  And if we were willing to play the "What if something truly weird happens and a party has to go with someone who did not do well in the primaries (or even run)?" game, we could also look at Joe Biden, Mitt Romney, and Paul Ryan as imaginable nominees.

I do not, however, want to focus here on the mechanics of how someone could become president.  Instead, I want to think about what the three front-runners would actually do -- both in terms of likely accomplishments and expenditure of political effort, even if not ultimately successful -- were they to win the presidency.

Here, I will focus only on those three most plausible winners, in part because of space limitations, but also because the others seem -- especially because their only plausible paths to a nomination are contingent on unprecedented dysfunction within their parties -- like general election losers.  (That might not be true of Bernie Sanders, whose close win in Michigan makes it somewhat more likely that he could win the nomination during the primaries, but he would still face long odds in the general election.)

With Hillary Clinton, the story is fairly easy to sketch out.  If she wins, she will end up facing an undaunted Tea Party-led Republican majority in the House, and most likely (but by no means a sure thing) a Democratic-majority Senate.  Her opposition, fueled by decades of anti-Hillary hysteria on the right, would be utterly intransigent, so that nothing would happen legislatively.  It would become almost impossible to fulfill even the most basic responsibilities of governing.  A Democratic Senate would change the filibuster rules to allow her to fill her cabinet posts and appoint judges -- no small matter! -- but every budget would be an epic battle, including (as I described in a Verdict column and a Dorf on Law post several months ago) more debt ceiling brinksmanship.

Clinton would, therefore, have to exercise aggressive executive authority.  This, in turn, means that she would be especially careful to make appointments to all federal agencies to maximize her chances to get useful things done.  This is not just a matter of high-profile issues, such as getting the EPA or FDA to issue new regulations on politically salient problems like climate change or cigarettes (or even getting the CDC to study gun violence).  It is also, importantly, the process of choosing people to do all of the little things that matter, such as getting the NLRB to be somewhat progressive, or putting competent people in place at the HUD, HHS, and so on.

It is this latter issue that, I think, possibly differentiates Trump from everyone else on the Republican side.  Even though Ted Cruz is obviously the candidate of the most retrograde fundamentalist Christian activists, any of the Republicans would surely put in place George W. Bush-like screening processes that would put religious extremists and movement conservative true believers in every available position.  (Remember the scandal involving U.S. attorneys under W?)  Is there any reason to believe that Rubio, Kasich, Ryan, or Romney would resist the pressure to put such people in place, knowing that the success of their presidencies -- as well as their reelections -- would crucially depend on keeping the party's activist base happy?

It is not clear, however, that Trump would follow that path.  True, his only plausible strategy for winning in November involves convincing enough of the Republican leadership class that they can work with him, but he strikes me as someone who would simply not be moved by claims that he must put a Monica Goodling-like character in a key position in his administration to hire religious zealots.  It is also true that he might not care enough to say no, but Trump is the only Republican candidate or candidate-in-waiting whose under-the-radar governing team might not be completely captured by the crowd that ran things under Bush.  That is not a reason to feel good about Trump, of course, but it is useful to remember just how many ways the not-at-all-moderate alternatives to Trump would do damage to the country.

What about the high profile issues on which a president must make policy decisions?  As noted above, Clinton's presidency would surely be an exercise in gridlock.  Nothing that she proposed would be taken seriously on Capitol Hill, and she would veto anything that came out of the House.  Cruz is a more interesting story.  If he were to win, both the House and the Senate would continue to be controlled by Republicans, because a country that voted for Cruz would certainly not swing five Senate seats to the Democrats.  Undivided government!

On the other hand, Cruz is "the most hated man in Washington," and most especially in the Senate.  (Fun fact: If you type "Cruz mo" into Google, you do not have to continue typing, because the first two suggested matches are "Cruz most hated" and "Cruz most hated man.")  John McCain, in particular, hates his guts.  Mitch McConnell is still angry about Cruz calling him a liar on the floor of the Senate.  This would not stop Cruz from getting a lot of bad things passed (like repealing the Affordable Care Act), but it is at least imaginable that the Senate could become a roadblock for Cruz on many issues, and not just on psychopathic ideas like carpet-bombing the Middle East.  For example, although it is easy to imagine the House voting to eliminate the IRS, would the Senate really go along?

The most perversely interesting character, of course, is again Trump.  What would he actually do after taking the oath of office?  He says a lot of scary, terrible things.  I agree with all of the people who say that a Trump victory in November is too horrifying to contemplate, because of the possibility that he might follow through on some of his worst impulses -- and impulse control is not his strong suit, to say the least.  And even if he never follows up on those specific possibilities, simply having an openly racist xenophobe in the White House would be a disaster -- not that much worse than electing not-as-openly-racist xenophobes like Cruz, Ryan, or the others, but still worse.

Still, I find myself wondering just what a post-election Trump would actually care about.  Even regarding Trump's infamous border wall, a pro-Trump member of Congress has recently admitted that Trump's in-reality policy would simply amount to an incomplete wall supplemented by hi-tech surveillance -- a continuation of current policy.  Once Trump realized that he could not round up even a fraction of illegal immigrants (assuming that he has not already come to that conclusion), would he simply lose interest?

Even Trump's "Day 1" to-do list is a bit odd, and hard to take seriously: "First thing is knock out some of the executive orders done by our president."  OK, which ones?  I do not doubt that he would change some things, but it is difficult to know how, and on what.  His other priorities? "[O]n border where people can pour into (the) country like Swiss cheese."  That is not something that can be taken care of on Day 1.  It would require actual time and attention, and as I described above, he might not care enough to follow through on something that is actually difficult to accomplish (if, indeed, it can be accomplished at all).

What else?  "I would knock out Obamacare."  Maybe, and maybe Republicans in Congress will send him a bill that would provide an alternative, or instead simply take us back to the bad old days of people losing coverage for preexisting conditions and all that.  I do take this possibility seriously, because the ACA is a true advance in U.S. health care policy, but it does not differentiate Trump from any of his rivals, who have taken a blood oath to repeal that very good law.  And again, I could at least imagine Trump not actually caring enough about the ACA to go along.

Trump's final Day 1 priority?  "Take care of our vets and military."  Excellent.  How?  Again, can you do this in one day, and without spending money?  Trump also has made vague-but-insane statements about taxes (even more insane than his opponents' plans), and it is possible that he would sign any regressive tax bill that came across his desk.

I guess I am picturing a situation in which Trump soon realizes that being president is a lot of work, at which point he decides not to be an actual president.  This is not a good situation, of course.  But he could simply decide to spend his time saying (but not doing) outrageous things, instead making a big deal about putting a gold "T" over the portico of the White House, and saying (and tweeting) nasty things about a growing chorus of critics.  I am not willing to bet on any of that, but I do know that Ted Cruz would tirelessly push a terrible agenda.  Trump's ego-driven attention-deficit disorder, on the other hand, could actually make him substantively meaningless.

Like his buddy Sarah Palin, Trump could even simply decide to resign after he becomes bored.  The other aspects of a possible Trump presidency are, again, truly terrifying, but it is interesting to think about the consequences of electing a man who truly seems not to know or care what he would do if he were ever allowed near the Oval Office.

Maybe Scalia's Seat Should Stay Empty for a While

By Eric Segall

In my Salon piece this morning, I argued that a constitutional crisis over the vacant seat left by Justice Scalia might actually be a good thing for the Court and the Country. A prolonged political war over the next Justice might display starkly the politicized nature of the Court and perhaps even lead to more deferential Justices once the Court is back to full strength. The Court-packing crisis of the 1930’s had that effect and we were all better off with a Court less willing to reverse the decisions of other political officials.

The biggest push back I have received since the piece came out is my argument that a weaker Court generally favors progressives and the left much more than conservatives and the right. This thesis is always a hard sell to both sides, but history demonstrates rather starkly how the Court uses judicial review mostly to maintain the status quo and assist the rich and the powerful over the poor as well as racial, ethnic, and religious minorities.

From 1857, when the Court stopped Congress from ending slavery in the territories, until 1936, the Justices’ decisions striking down state and federal laws almost invariably favored the right. During this time the Justices invalidated hundreds of progressive economic laws while at the same time they failed to enforce the spirit of the Reconstruction Amendments by first preventing Congress from ending segregation in places of public accommodations and then rubber stamping Jim Crow at the state level. Also during this time period--not a blip but over seventy-five years--the Court did not enforce freedom of speech or freedom of religion and barely enforced the criminal procedure protections in the fourth, fifth, sixth, and eighth amendments.

Of course all that changed with the Warren Court and the early Burger Court, but that lasted for about fifteen to twenty years. Since 1986, the Court has been extremely conservative in most areas of constitutional law, including moving from protecting corporations over dissenters under the First Amendment, virtually ignoring the Establishment Clause, watering down and in some cases erasing the Warren Court’s criminal procedure protections, gutting the Voting Rights Act, and stopping Congressional efforts under Section 5 of the Fourteenth Amendment to help marginalized groups (to name just a few examples). Of course, because of Justice Kennedy’s defections, there have been a few progressive victories, mostly in the area of gay rights, but overall the Court has been a strong right-of-center institution for the last thirty years.

Now, imagine that President Cruz, Kasich or Rubio (sorry but I can’t say the "T" word) gets to replace Scalia and then another Justice or two. If that occurs, we will have a reactionary Court like the one we were stuck with from 1857-1936 for maybe fifty years! Under those circumstances, liberals and progressives would once again see quite clearly that an institution committed to enforcing the values inherent in an ancient document is much more likely over time to maintain the status quo and prevent much needed change than force social progress. If Clinton or Sanders prevails, we might get a more progressive Court, assuming the Senate goes along, but as the resistance to Brown and Roe demonstrated, when the Court does act to force social progress, which is rare, it is much less effective than when it tries to prevent social change.

Of course, it is impossible to prove a negative, and it is possible that the country would have been worse off over time with a much more deferential style of judicial review (I do not advocate the total abandonment of the doctrine). But given the Court’s history and its consistent and effective siding with the rich and the powerful over the poor and the downtrodden, as a progressive, I like my odds with a much weaker Court.

A prolonged political stalemate over Scalia’s seat could present the Court’s political nature quite starkly to the American people. The more the people see the Court as a political organ rather than a Court of law, the more the Court might have to worry about its prestige and reputation. Both Cass Sunstein and Scott Turrow, self-described liberals, have written in the last week that, if this crisis leads to a weaker Court with Justices less willing to thrust themselves into nationally contested social issues not clearly resolved by the Constitution, we would all be better off. Neither made an historical argument, but as my Salon piece shows, they are both clearly correct as a matter of history as well as policy. A strong Court with aggressive Justices is rarely good for the country or for the left. Maybe Justice Scalia’s seat should remain empty for a very long time.

Dreaming of the RNC Smoke-Filled Room

by Michael Dorf

As the betting now stands, informed observers think the most likely outcome of the Republican Party primaries is that Donald Trump will go to the convention with a majority of delegates and become the nominee. But there remains a serious possibility that no one will have a majority. Some people are now arguing that in such a scenario, the candidate with the most delegates (presumably Trump but possibly Cruz), should get the nomination based on small-d democratic principles. But for that to happen, the non-Trump (or non-Cruz) delegates would need to agree.

Accordingly, I set aside the possibility of the nomination going to Trump (or Cruz) simply on the ground that he has a plurality, and ask what a negotiated resolution looks like. Suppose, just for illustrative purposes, that the candidates arrive at the convention with the delegates split as follows:

Trump: 45%
Cruz: 30%
Rubio: 19%
Kasich: 6%

The exact numbers aren't important but the following is: Trump could get to a majority by combining with any of his three rivals, whereas all of the other three candidates would need to combine together to block Trump. The first ballot would be indecisive. Then the bargaining would begin. After a brutal campaign, it's hard to imagine any of the other remaining candidates throwing in with Trump, but they have all pledged to support the nominee, and so you never know.

Would Kasich release his delegates to Trump in exchange for being his running mate? Presumably only if he doesn't have a better offer from Cruz and Rubio. It's easy to see either Cruz or Rubio offering Kasich the VP slot, but the problem each of them is what to do with the odd man out. The best deal for the GOP would go like this: Cruz and Kasich release their delegates to Rubio; Kasich becomes Rubio's running mate; and Cruz accepts an IOU in which Rubio promises to nominate Cruz to the Supreme Court.

But I doubt that Cruz would take that deal, especially if, as in my hypothetical scenario (and in current reality), Cruz has substantially more delegates than Rubio has. Cruz would then say (with some justification) that he should be at the top of the ticket. What does Rubio get? Maybe he settles for being Cruz's running mate, though I doubt it. Even if Rubio does settle, however, what's then left to give Kasich? If he would actually prefer something like Secretary of the Treasury to VP, then a deal is possible, but if not, then Kasich might take Trump's better offer of the Vice Presidency.

Or maybe not. Maybe Kasich thinks that a Cruz victory would be more likely than a Trump victory, and so, even if ideally he would prefer VP to Treasury (or something else), he might take the promise of a somewhat less desirable position for a greater chance of actually getting it come January 2017.

Nobody knows how any of this will play out, but my main point is that it should not be assumed that denying Trump a first-ballot nomination and rejecting a give-it-to-the-guy-with-the-plurality resolution necessarily means denying Trump the nomination. Because reaching a deal among all the non-Trump candidates would be more complicated than reaching a deal between Trump and one other candidate, Trump could still emerge as the nominee, even if he only has a plurality of delegates going into the convention.

Abortion, Estate Taxes, and (the Lack of) Real-World Examples

by Neil H. Buchanan

A good storyteller draws in her audience by personalizing a larger theme.  Journalists and politicians succeed when they can find a particularly vivid example of a more general issue, and they then tell a story about how that example supports a specific conclusion.  This is why, for example, presidents starting with Ronald Reagan have invited "real people" to the State of the Union address each year, to be able to point to those people as exemplars of one thing or another.

The Flint water crisis would not have become so important if we did not see lower-middle-class women holding up bottles of brown water that had come from the taps in their homes.  The Black Lives Matter movement became a force not when people studied statistics and found that police violence against black citizens was happening with depressing frequency, but when Michael Brown (Ferguson), Eric Garner (Staten Island), Freddie Gray (Baltimore), Tamir Rice (Cleveland), and others put a face on the problem.  The NFL would not have taken more severe action against Ray Rice without the public reaction to seeing the video of Rice's brutal punch to his then-fiancee's face.

This phenomenon does not always cut in a liberal direction, notwithstanding the examples that I described above.  The infamous Willie Horton advertisement in 1988, run by the "compassionate conservative" George H.W. Bush's campaign to paint Michael Dukakis as soft on crime, used a vivid example of a terrible crime to devastating effect, even though the Dukakis campaign was later able to show that former California Governor Ronald Reagan had once bragged about a program nearly identical to the one in question in Dukakis's Massachusetts.

Because I am not a journalist, I can also take the liberty of relying on an anonymous source, who served in the Justice Department in the 1980's.  He told me that the Reagan political appointees at DOJ directly asked the nonpolitical attorneys to create a public uproar by deliberately committing a Miranda violation in the case of a suspect in a heinous murder, so that the public would become enraged enough to demand the stripping of defendants' rights.  The nonpolitical people responded that they would not knowingly put a ruthless murderer back on the streets, even in the service of an ultimate goal that some of them found appealing.  (Others did not find it so appealing.)

We use terms like "putting a face on" a problem, or "this is the poster child" for an issue, because we understand the power of narrative.  Of course, humanizing an issue is supposed to be only the first step.  We can find heart-rending stories about the victims of an environmental disaster, but we then try to figure out how to balance the risks of future disasters against the trade-offs necessary to reduce those risks.  It seems cold-blooded when we do it, but we know that we must accept the inevitability of preventable harms and even death in order to achieve some goals.  The Willie Horton example is similarly instructive, because states like Massachusetts and California (and many others) had used furlough programs in the informed belief that the risk of crimes committed by furloughed prisoners was outweighed by the advantages of having those prisoners maintain ties with their communities, as well as other advantages.

I thought of all this while reading an editorial in yesterday's New York Times discussing the recent Supreme Court oral argument in the Texas abortion case.  (Readers who missed Professor Dorf's post yesterday, in which he shreds an idea that was raised during that argument, should read it right away.)  The editorial pointed out that the "admitting privileges requirement," which is among the burdens that Texas and other states are trying to impose on abortion-providing clinics, simply has no upside.  That is, we are not balancing some harm from doctors' not having admitting privileges against the burden on women's constitutional rights from limiting the number of doctors who can perform abortions.  As Justice Breyer asked the State of Texas's lawyer: "What is the benefit to the woman of a procedure that is going to cure a problem of which there is not one single instance in the nation?"

Indeed, what does one do when there is "not one single instance" of a supposed problem actually happening?  As the editors noted, "[t]he real answer ... was that anti-abortion activists, who drafted the Texas law and many others like it around the country, know that claims of 'protecting women’s health' have succeeded in giving cover to laws whose true purpose is to end access to legal abortion in America."  In other words, lacking great examples does not make it impossible to pretend that such examples exist.

The problem here, in fact, is even more extreme, because the concept of a poster child is based on the notion that there are many examples of a problem, but one of those examples is especially sympathetic or unsympathetic in a way that crystallizes an issue.  As Breyer noted, however, there are no examples at all, much less a group of examples from which advocates could choose the one that is the most media-friendly.

This post might already be giving readers whiplash, because my examples have ricocheted between domestic violence, abortion, and various types of racism.  But those leaps were nothing compared to where I now turn: the estate tax.  Yes, that's right, the estate tax.  Why?  Because anti-estate tax conservatives have always relied on a claim for which there is not one single example: that family farms and small businesses are broken up against the wishes of the decedent and his heirs, who would have continued to run the family business but were forced to sell it to pay the estate tax bill.

The "protecting women's health" move in the abortion debate, then, is simply an analogy to the "protecting the family farm" move in the estate tax debate.  In the estate tax context, what we have seen is that Republicans (and many farm-state Democrats) insist -- against a complete lack of evidence -- that the estate tax is doing something horrible.  We never even get to the point were we might ask, "Well, is there a net plus to a system that inadvertently but inevitably causes some businesses to be sold under financial duress?"  There is no cost against which to weigh the benefits, because not even one such forced sale has ever been documented.

One way that we know that there is not even one example is that, especially with such a highly politicized issue, any example -- good or bad -- would already have been turned into political legend.  If there were a sympathetic farm family that could be seen crying at the locked gate of their beloved farmstead, holding a picture of their dearly departed father while saying, "If only we had had the money to pay the estate tax, we could have held on to Greenacre!" we would have seen them a million times by now.  On the other hand, if there were an example of a family farm or business that had been sold because of the estate tax, but the family's story suggested that we should not care about their fate, then the pro-estate tax side would surely be pointing to their story.

Almost ten years ago, I wrote a very short (3-page) piece about some of these issues in the journal Tax Notes.  (I know.  How did you miss it?!)  That piece is downloadable here.  My analysis there focuses on an official report from the Joint Economic Committee of Congress, in which the Republican staff repeated the claim that the estate tax breaks up "many family businesses."  Yet the report never presents direct evidence, either through anecdotes or systematic collection of data, showing that there is any problem at all.  Readers of this post who are interested are certainly invited to read my short piece, but I will mention one especially revealing argument here.

The JEC's report cites a study by economists showing that families do not buy enough insurance to prevent losing the family farm or business to the estate tax, which the Republicans on the JEC staff interpret as an explanation for why "estate taxes cause such disruption to family businesses."  When I read the economists' study, however, I found that the text immediately following the sentence that was quoted in the JEC report offers two explanations for that finding, suggesting that (1) these businesses do not need to insure against the estate tax, because they can pay any taxes out of liquid assets, or (2) "contrary to the popular view that keeping a business in the family is very important to business owners, they make no special efforts in this respect."  This is hardly the narrative that the anti-estate tax people are pushing.

In any event, the Texas abortion argument and the never-ending debate over the estate tax are especially vivid examples of Stephen Colbert's famous dictum that "reality has a well-known liberal bias."  More to the point, however, they are a reminder of just how detached one side of the political spectrum in this country has become from anything resembling reasoned debate.  If there are no examples (much less systematic evidence) supporting conservatives' assertions, they simply insist that there are, and then they keep repeating falsehoods as facts.  Could anyone really be surprised that the political conversation in this country has become so unhinged?

Facts and Purpose in the Texas Abortion Case Oral Argument

By Michael Dorf

During the SCOTUS oral argument today in the Texas abortion case, one prominent issue was the actual impact of the challenged Texas laws--requiring that abortion providers have admitting privileges within a nearby hospital and requiring that facilities where abortions are provided, even by pill, be equipped as ambulatory surgical centers (ASCs), i.e., mini-hospitals. Would these laws, if permitted to go into effect, significantly reduce the number of abortion providers available to women in Texas and thus, for a large number (or, if you prefer, a substantial fraction) of such women, pose a substantial obstacle to obtaining an abortion?

Justice Kagan pointed to what she called an almost "perfect controlled experiment" that occurred during the two-week period that the ASC requirement was not enjoined: twelve clinics closed; when the law was enjoined, they reopened. In addition, there was substantial evidence in the record from which the district court inferred cause and effect.

To be sure, it's possible that this was simply a matter of timing. Perhaps complying with the ASC requirements imposes startup costs and necessitates changes--such as retrofitting existing buildings or leasing new space--but that after some period of adjustment, abortion providers would be able to comply. Put differently, if the ASC requirement had been in effect for two years rather than for just two weeks, maybe at the end of those two years the clinics would have reopened even if the law were not enjoined. In the meantime, the law would have burdened women's right to abortion, but after the adjustment period, it no longer would. If that's true, then one might think that the problem with the ASC requirement is that it didn't include a phase-in period, but that with a phase-in period, it would be constitutional.

Justice Kennedy appeared to be thinking along these lines when he asked SG Verrilli (arguing for the U.S. as amicus supporting the plaintiffs) whether a district judge would have the equitable power to enjoin the Texas law for two-and-a-half or three years so that women don't have their rights violated, but then at the end of that period the judge would evaluate whether the law is burdensome beyond the startup period. The SG ducked the question, and the argument then veered off in a different direction. That's too bad, because the question is relatively easy to answer. A district court does have that power, but it would be unwise to exercise the power.

Given the premise of the question--that the ASC requirement is at least a temporarily unconstitutional imposition--of course a district judge could enjoin it. And if it turned out that the ASC requirement really were only a temporary burden, then yes, it would be appropriate to lift the injunction if and when the clinics satisfied the ASC requirement. But the premises of the exercise are problematic.

First, it is hardly clear that the enjoin-and-experiment approach would generate real information. Complying with the ASC requirements is expensive. If the directors of an abortion facility know that failure to satisfy the ASC requirements at the end of the 2.5 or 3-year period would excuse them from having to comply at all, then they will have no incentive to make the effort to comply. In other words, the state ought to object to this proposed experiment.

Second, and more fundamentally, a requirement that abortion providers spend potentially millions of dollars throughout the state to bring their facilities up to ASC levels would itself be an undue burden. That money has to come from somewhere, and the most likely place is patient care. Abortion access would be reduced as the abortion providers diverted funds from patient care to widening corridors and making other structural changes to their facilities.

Why would that burden be "undue"? Because there's no good reason for abortion providers to have to satisfy the requirements of an ASC (or for the admitting privileges requirement). Throughout the oral argument, Chief Justice Roberts and the lawyer for Texas repeatedly contended that the question of whether a burden is "undue" depends only on the size of the burden, but this defies both common sense and the case law. Here's a common sense example. Requiring someone to pass a driving test to obtain a license to drive is a reasonable burden; requiring someone to pass a driving test in order to purchase movie tickets is undue. Whether a burden is "due" or "undue" rather obviously depends on the reason for which it is imposed.

Nonetheless, the Chief Justice contended that when the Court said in Planned Parenthood v. Casey that a law is an undue burden if it has the purpose or effect of placing a substantial obstacle in the path of a woman seeking to obtain an abortion, it did not require any inquiry into legislative purpose. According to the Chief Justice, so long as there is a rational basis for thinking that the Texas law could be a health measure, its purpose must be accepted as directed at health.

That's wrong. All laws are subject to at least the rational-basis test, so the Chief's approach would render the purpose prong of Casey completely superfluous. And indeed, as I noted in my SCOTUSblog preview of the case, it was the dissenters in Casey who argued for the rational-basis test. The plurality (in an opinion authored jointly by Justices O'Connor, Kennedy, and Souter), instead said this: "Unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right." (Emphasis added). Yet the Chief Justice would have us believe that the Casey plurality really meant by that to be agreeing with the Casey dissenters that there is no such thing as an unnecessary health regulation. At least give the Chief points for chutzpah.

There really is nothing to this case other than the question of whether to overrule Roe and Casey. Assuming that the answer to that question is no, the challenged Texas provisions are invalid.

The Whole Truth About Abortion

by Sherry F. Colb

As has been widely reported and discussed, the Supreme Court hears argument today in a case challenging a restrictive abortion law from Texas. This post and my Verdict column for this week discuss a California law involving a different kind of abortion-related law: it requires licensed facilities to notify their patients that California has public programs that provide free or low-cost reproductive services, including abortion, coupled with a phone number for women to access such services.

In the column, I take up the question of how a pro-choice versus a pro-life advocate might perceive this law and consider and reflect on both perspectives.  One of the arguably salient issues in this context is whether pro-life pregnancy clinics are affirmatively lying to patients or whether they are simply omitting some information that patients might be interested in knowing (or entitled to know). To the extent that clinics are telling women false information about abortion, that would plainly be inappropriate (hopefully by the lights of any honest person, regardless of her position on abortion). But the California law seems to address what is more of an omission than an act by pro-life crisis pregnancy centers: their failure to share information about the availability of abortion (as well as contraception) and its subsidization by the government of California.

In testifying, witnesses swear (or affirm) to tell the truth, the "whole truth," and nothing but the truth. A commitment to the whole truth means that a person has violated the oath if she or he tells only a partial version of what happened, leaving out important details that could make a difference to the disposition of the case.  Similarly, if a pregnant woman goes to a crisis pregnancy center, she may well expect to learn about the various alternatives she has in handling her pregnancy.  This would include information about prenatal care, taking her pregnancy to term, surrender of babies for adoption and choosing adoptive parents, future use of contraception, and terminating her pregnancy. Learning about only some of these alternatives but not the last one (or the last two) would reflect the impact of missing the "whole truth" about reproductive options.  If one were testifying under oath about paths one might take upon learning that one was pregnant, one would accordingly be violating the oath to tell the "whole truth"by providing only the partial information provided by pro-life crisis pregnancy centers.

On the other hand, is a crisis pregnancy center like a witness in court who promises to tell the "whole truth," or is such a center a different sort of thing?  My view (as a pro-choice person) is that the whole array of legally recognized options for pregnant women is part of what is implicitly promised when a center bills itself as a "crisis pregnancy center" (or even just a "pregnancy center" or "reproductive health center").  To omit abortion, on this view, is to fail to deliver what one has promised at the door, a failure very similar to the witness's omission of important facts in telling a partial truth rather than the whole truth.

Yet from a pro-life person's perspective, it may be unethical and therefore inappropriate to give pregnant women information about the abortion option, since--from their point of view--abortion is a form of unjustifiable violence.  Just as a crisis pregnancy center would not be obligated to tell a pregnant woman that she could find baby brokers who would legally sell her baby to the highest bidder, even if this happened to be true, a pro-life advocate might well regard the abortion alternative as just as bad as or maybe even worse than the broker alternative.  Just because an option is legal does not make it legitimate or moral, such an advocate would probably say.

To provide an analogy, I have a friend who, like me, is an ethical vegan and who works in a food market, primarily with produce.  When people ask this friend where they can find the non-vegan version of cheese, i.e., cheese made with the lacteal secretions of mammal moms whose babies are taken away from them and who are slaughtered within a few years, along with their lost infants, the friend replies "I couldn't tell you that."  From my friend's point of view, this is not information that anyone is entitled to have; yet customers are likely to misinterpret my friend's words to mean "I don't know," rather than what's actually meant, which is "I know the answer to your question, but I would be violating my ethics if I were to tell you."  I consider my friend's actions legitimate, despite the fact that customers are not receiving the "whole truth" about where the cheese is or what the friend knows about where the cheese is.

How different is the failure of pro-life advocates to tell pregnant patients about the abortion option (or where they can call to find out more about it)?  One important difference is that other people work at the food market and can tell the inquiring consumers what they want to know.  With respect to a pro-life crisis pregnancy center, by contrast, it may be that only pro-life individuals work there, so it is likely that--absent the California law--no one will be telling pregnant patients about abortion.  On the other hand, one could conceive of the crisis pregnancy center as one place to gather information in a sea of other places.  A dissatisfied pregnant woman could head over to a different pregnancy center or search on the web for one that considers abortion one of the options to which pregnant patients ought to be exposed.

As I have said, as a pro-choice person, I favor the California law, and I do not like the idea of patients receiving incomplete (and, to that extent, inaccurate) information about their options in case they are pregnant.  But as my co-author Michael Dorf and I explain in our book, Beating Hearts:  Abortion and Animal Rights, neither of us regards pre-sentience abortions as violating an embryo's or fetus's interests, so I do not have ethical qualms about most abortion procedures.  For someone who takes a different view, however, I think I can understand and empathize with the desire not to tell the "whole truth" when it comes to this procedure.  It is, in other words, very difficult to separate out one's perspective on abortion from one's perspective on the California law requiring the provision of (some) information about the availability of abortion for pregnant women.  Or to put it differently, I would have a hard time tolerating having to let people know about all of the restaurants they could go to consume animal products (if only there were restaurants in my town that were actually vegan).

The New Era of Polite Bluntness

by Neil H. Buchanan

Today is Super Tuesday, the day that Democratic and Republican leaders created in the 1980's to make sure that insurgent or extreme candidates would always fail.  The idea was to force I-think-I-can candidates to compete in an overwhelming number of primary elections on the same day.  The only way to survive Super Tuesday, it was thought, would be to have the money -- which meant the backing of the party elites -- to fight a multi-front war.  The early excitement about a non-anointed outsider would thus be summarily doused, and the political narratives could get back on script.  Goodbye Rick Santorum, hello Mitt Romney.  Goodbye, Howard Dean, hello John Kerry.

This year's Super Tuesday primaries will surely play out as planned on the Democratic side.  Bernie Sanders will not drop out tomorrow, but it is at this point all but impossible to imagine anyone but Hillary Clinton as the Democratic Party's ultimate nominee.  From this day forward, Clinton will be trying not to alienate Sanders's supporters, instead looking for ways to harness their enthusiasm for November, even as she cruises to victory.  The only interesting question left for Democrats is the choice of Clinton's running mate.

Today could mark something very different on the Republican side. We are, it seems, about to begin a 252-day period in which we will spend every moment worrying whether America will actually elect a president whose actions raise reasonable questions about whether he is a fascist.  Interestingly, the most informed negative response to the fascism question came in mid-December 2015, from Dylan Matthews on the Vox site: "To be blunt: Donald Trump is not a fascist. ... He's simply a racist who wants to keep the current system but deny its benefits to groups he's interested in oppressing."  Feel better?  Given the growing evidence that Trump incites his minions into disturbing spasms of cyber-bullying, and that he so often speaks of using actual violence against his critics, perhaps even Matthews's tepid defense will soon seem quaint.

In any case, it is important to understand that Trump's possible nomination will require a recalibration of the way that reasonable people engage in public debate.  It is by now well known that fact-checking has had no impact on Trump.  On PolitiFact, 78% of Trump's statements that have been checked have been deemed "mostly false," "false," or "pants on fire."  (One percent have been deemed "true.")  Trump remains undeterred, as are his followers.  And given the decidedly uneven track record of these fact-checking sites, and their obvious decision to try to maintain the fiction that lying is equally bipartisan by selectively calling out lies, I would not want to rely on them to stop the Trump phenomenon.

But the issue with Trump goes beyond his willingness to simply say things that are false.  Among his many other scary traits, Trump is quick to jump on conspiracy theories and to distort facts in ways that make them sound conspiratorial.  One of the less incendiary of those claims is that the U.S. unemployment rate is not actually 4.9% (as the Bureau of Labor Statistics reported at the end of January), but is, Trump asserted, "probably 28, 29, as high as 35. In fact, I even heard recently 42 percent."

The New York Times has a section for data/policy wonks called "The Upshot."  One of their best economics writers, Neil Irwin, took on Trump's claim about the unemployment rate in a column on February 10.  Irwin starts tentatively: "Mr. Trump might be bombastic, but he’s not entirely wrong," because "[t]he truth is, there is no 'true' unemployment rate. There are a nearly infinite multitude of ways to think about, and calculate, joblessness."

This is true.  Indeed, one of the more common moves on the political center-left has been to question the usefulness of the official unemployment rate, because it leaves out "discouraged workers" (those who have given up looking for work in the perhaps reasonable belief that there are no jobs to find) and involuntary part-time workers.  When I was a graduate student, one of the first policy memos that I wrote for a professor summarized those arguments and found that such an expanded definition of joblessness showed the rate being about twice as high as the official rate.

Irwin's column then runs through a variety of other ways in which one can say, without actually lying, that the unemployment rate is even higher.  He notes that one can get the number above 40%, "[b]ut keep in mind that this counts as unemployed every retiree, every college student, everyone who is unable to work because of a disability and every parent who voluntarily stays at home to raise a child."  Irwin then mockingly suggests that, "[i]nstead of just including people 16 and above, the way the B.L.S. does, we could throw in those good-for-nothing children who are neither working, looking for work nor counted as part of the labor force.  Like my 2-year-old niece, Lilia, who if you ask me has had it too easy for too long."

This is beautifully written, and it makes its points effectively.  Yet it ultimately, I think, concedes far too much ground.  Responding to Trump's provocations with, "Well, he's got a point, and he's not wrong, exactly," is a classic form of academic riposte.  It is, in fact, what the best legal pedagogy embodies: Give one's opponent the full benefit of the doubt, fill in missing parts of her argument in ways that seem "more than fair" or at least not uncharitable, and then show systematically that there is still no valid argument -- or, as in this case, that the fact-based argument is simply embarrassing upon full inspection.

Again, there is nothing wrong with this.  In a better world, it would be the way that everyone treats everyone. I am glad that the norms of academia and in at least some high-level precincts of journalism are based on the conviction that this is the best way to engage with ideas. But we are now in a different era, an era where headlines like, "The Real Jobless Rate Is 42 Percent? Donald Trump Has a Point, Sort Of" (which is the real headline of that Upshot piece), empowers rather than diminishes the man who is shamelessly willing to distort the truth that the rest of us claim to care about.

This means that it is important not to bury the lead.  "Trump distorts again" is different from "Trump's point is not false but is kind of silly when you think about it."  If we were dealing with someone other than "a racist who wants to keep the current system but deny its benefits to groups he's interested in oppressing," maybe it would be reasonable to continue to pretend that we live in a world where nuanced retorts will carry the day, but that world is now in the rear-view mirror.

As an aside, I feel compelled to point out that the fundamental error that Trump commits in his claim about the 40-percent-plus unemployment rate is also at the heart of Mitt Romney's infamous "47% comment," which is near and dear to Republicans' hearts. One gets to the claim that there is something wrong with "only 53% of people paying federal income taxes" only by ignoring the reasons why that was so: most retirees do not pay income taxes, students and children do not pay income taxes, and unusually large numbers of people have no income to tax during a deep recession.  (The 47% number emerged in 2010).  For Trump's Republican detractors to be dismayed that he is playing similarly fast and loose with statistics is, shall we say, rich.

In any case, we now know how the favored candidate of that same Republican establishment has decided to respond to Trump.  On last night's "Daily Show," Trevor Noah showed a clip of Marco Rubio making "a dick joke" at Trump's expense, with Rubio acting even more like a 14-year-old boy than usual, yukking it up while suggesting that Trump's physical endowment is inadequate.  More generally, Rubio and Ted Cruz now seem intent on simply insulting Trump as shamelessly as he insults everyone.

That is obviously a losing proposition, because Rubio and Cruz (as bad as they are in so many ways) simply do not have the pathological skills necessary to make such insults stick.  But even if they could be the bullies that they now want to be, it is not necessary for everyone else to become their worst selves.  In this atmosphere, even speaking the blunt truth about Trump's lies, exaggerations, and distortions might ultimately not succeed.  At the very least, however, it is essential to get out of the habit of argumentative modesty that is so common among people who care about facts and logic.

It is important to say, "He is wrong," rather than, "Although I ultimately disagree with him on the substantive point, there is a way to view what he said in a way that is interestingly not wrong."  The second approach has been ingrained in too many people, to the point where the first statement seems affirmatively impolite.  And although it is both unnecessary and self-defeating to be crude or to engage in taunts, we must recognize that one can and must be polite but forthrightly say, "This is dangerous and wrong."  The stakes have never been higher.

The Myth of Neutral Supreme Court Justices

By Eric Segall

Senator Grassley today wrote a response on SCOTUS Blog to President Obama’s essay on the same site arguing that the Senate should fulfill its constitutional duty to give his nominee to fill Justice Scalia’s vacant seat a full confirmation hearing. The main point of Grassley’s essay was to air his disagreement with the President that a Supreme Court Justice’s opinion, in hard cases, “necessarily will be shaped by his or her own perspective, ethics, and judgment,” and he will “arriv[e] at just decisions and fair outcomes” based on the application of “life experience” to the “rapidly changing times.”

Grassley took issue with that description of a Justice’s obligation, claiming that Justice Scalia “crystallized the proper alternative understanding of the role of a Justice as adhering to the rule of law, which he famously defined as a law of rules. He understood that a Justice lacking a commitment to the rule of law would always be tempted to find congruence between the direction in which times were rapidly changing and his or her own policy preferences.” The rest of Grassley’s essay focused on the choice the American people should make themselves between a Scalia-like Justice who follows the law and a potential Obama nominee who would impose his own values and preferences on the American people.

Senator Grassley’s essay is woefully ignorant (or just dishonest) about how Justice Scalia decided cases and how the Court as an institution operates. Justice Scalia, quite obviously, imposed his own personal preferences on constitutional law for over a quarter of century detached from the rule of law as Grassley describes it. As Judge Richard Posner and I wrote on this blog a few months ago:

Justice Scalia has repeatedly voted to strike down state and federal laws the text and history of which did not compel invalidation. He voted to strike down Section 4 of the Voting Rights Act (despite its passage by a unanimous Senate), every affirmative action law he has ever faced, a wide variety of campaign finance laws, federal civil rights laws as applied to the states, laws restricting the private ownership of guns, and laws enacted under Congress’ commerce clause power regulating both private businesses and the states.

Of course, Justice Scalia is no different from all the other Justices who have ever served on the Supreme Court in terms of how their personal preferences affected their actual votes (although Scalia was different in terms of the hypocritical indignity he expressed at others for engaging in the same conduct in which he Scalia engaged). Senator Grassley must know that when constitutional text is vague and history contested, one’s life experiences and personal, moral, religious, cultural, and partisan values will inevitably come into play. The Supreme Court has struck down hundreds of state and federal laws over the years, sometimes acting in a conservative fashion and sometimes in a liberal one, but it is the extremely rare case where text and history clearly point in one direction or the other. One does not have to completely embrace legal realism to know that personal values and preferences play a major role in constitutional (and other) cases.

The myth that there are two different types of Supreme Court Justices and that the American people should be allowed to “choose” the one they want by voting in the next election is unsupportable. Whether we are talking about Chief Justice Roberts or Justice Kagan, Justice Brennan or Chief Justice Rehnquist, personal preferences have played a major role in Supreme Court decision-making. Absent a strong presumption against overturning the decisions of other political actors, a presumption the Court has an institution has not possessed since at least 1857 when it prevented Congress from ending slavery in the territories, the Justices’ sense of fairness and justice will play a much larger role than text and history in shaping their decisions. Senator Grassley should know better and not perpetuate silly myths about our nation’s highest Court.

There Is No Freebie SCOTUS Nominee For Obama

by Michael Dorf

Last week, news surfaced that Nevada Republican Governor Brian Sandoval was one of the candidates the Obama administration was vetting for a possible SCOTUS nomination. Sandoval, who served for about four years as a federal district judge (having been appointed by President George W. Bush) was seen by some as a cagey choice for Obama: Rejecting or refusing to consider a moderate member of their own party would make Republican Senators look especially intransigent. At the same time, however, liberals longing for a chance to transform the Court were understandably worried that by naming a moderate with unknown and potentially quite conservative views on a range of issues, President Obama would be squandering a once-in-a-generation chance to shift the direction of the Court decisively. The conversation on Sandoval then ended fairly abruptly when Sandoval took himself out of the running.

Who's next? I don't have a crystal ball or inside information, so what follows is simply speculation, but it reaches a conclusion that has been largely overlooked thus far (or at least one that I haven't seen anywhere): A purely political choice by Obama could end up tying the hands of a President Hillary Clinton or (as looks increasingly unlikely) Bernie Sanders.

It might be thought that the stakes in the current nomination are entirely political. Because Senate Republicans are committed to not confirming or even holding hearings on any Obama nominee, the point of nominating anyone, the thinking goes, is simply to give a political weapon to Democrats--Clinton or Sanders in the presidential election and Democrats running for contested Senate seats in purple states. Maximum pressure gets applied, in this approach, by Obama nominating a moderate, because opposing such a moderate can be used most effectively in November by the Democratic presidential nominee and Democratic Senate candidates running against Republican Senators Portman (OH), Toomey (PA), Ayotte (NH), and Johnson (WI).

Yet it is not clear that President Obama can readily find a "moderate" with whom to bludgeon the Republicans. Sandoval's example is instructive. Let's assume that Sandoval would trade his governorship for a lifetime appointment to the Supreme Court. He nonetheless appeared to make the reasonable calculation that accepting an Obama nomination and becoming the Democrats' poster child for Republican Senatorial intransigence would severely damage his future as a Republican official--and for nothing, given that he wouldn't be confirmed anyway.

I'll challenge the reasonableness of this calculation below, but for now, I think it safe to assume that Sandoval's logic will be widely shared. If so, it will be nearly impossible to find a Republican public officeholder to accept an Obama nomination to the Supreme Court. Maybe there's a relatively young moderate-to-liberal Republican appointee currently serving on a lower federal court who would be willing to serve as the Obama SCOTUS nominee, but if so, I can't think of who it is.

That leaves Obama to fall back on a moderate Democrat, but given the American people's general ignorance about judicial matters, it would be very easy for Republicans to portray ANY Democrat as inherently liberal. Republican presidential candidates talk about Chief Justice John Roberts as though he were the second coming of William Brennan, after all, so you can imagine their reaction to any Democrat. As Tom Goldstein pointed out on SCOTUSblog, if Republicans were actually to give individual consideration to any Obama nominee, they could certainly come up with some substantive pretext for rejecting that nominee, but so long as Obama nominates a Democrat, they don't even need a pretext. In our era of polarization, a Democrat can be demagogued as a "liberal judicial activist" simply in virtue of being a Democrat.

Goldstein makes another point that has become pretty much conventional wisdom since Republicans coalesced around the idea that they will not hold hearings: Any nomination is simply about the 2016 electoral politics. Goldstein allows that a sufficiently compelling nominee could lead enough Republicans to change their minds about holding hearings but that, even if so, the Senate won't confirm anyone. Thus, he and everyone else conclude, Obama should nominate someone who puts maximum pressure on Republicans so that Democratic candidates can exploit the political advantage. Assuming that someone who plays to the right demographics and reads to the general public (but not the Republican base) as moderate could be found, Obama should nominate that someone.

I think the conventional wisdom is wrong. Even granting the assumption that someone who could be successfully portrayed politically as a moderate exists, this strategy could boomerang, because a President Clinton or Sanders would come under enormous political pressure to re-nominate Obama's nominee if--as seems likely--the Republicans hold no hearings.

Here the game theory gets a bit complicated because Obama, Clinton, and Sanders might well have different ideal Justices. But let's make a somewhat simplifying assumption that any of them would, if they could wave a magic wand, put X on the Court, where X is a youngish, liberal lawyer-judge who would be expected to be confirmed by a just-barely Democratic Senate in early 2017, perhaps after abolition of the filibuster for Supreme Court confirmations or perhaps even if not, during the new president's "honeymoon" period. However, because X would not be perceived as a moderate, Obama following a just-politics strategy doesn't nominate X now. Instead, he nominates Y, who is widely perceived to be to the right of X, and whose views on a lot of issues are unknown. When the Senate carries through on its promise to hold no hearings on Y, Democratic presidential and Senate candidates will use that refusal as political fodder, repeatedly pointing to Y's credentials, appealing life story, and moderation as proof that the Republicans are obstructionist extremists.

Now fast-forward to January 2017 after an assumed successful November for the Democrats. Having won the presidency and  a Senate majority by beating the drum for Y as the best thing that could happen to the Supreme Court since John Marshall, it would be very difficult for President Clinton or Sanders then to nominate anyone other than Y, even though the new president and most Democrats would much prefer X, and in a world in which Y hadn't been previously in play, X could be confirmed. Indeed, one could well see the Democratic candidate promising to renominate Y as part of the general election campaign.

My conclusion, therefore, is that President Obama does not have a politics-only freebie here. Whomever he nominates could well end up actually being re-nominated and confirmed by his successor. So he ought to look for someone who helps in the general election AND would be broadly welcomed by Democrats after the election. Meanwhile, perhaps Governor Sandoval was wrong to turn down the possibility of a Supreme Court nomination after all. Or maybe he's just hoping to get named to the Court by President Trump.