From Paul Mirengoff (Ringside at the Reckoning):

What would Donald Trump say about a party leader who led his party to two successive electoral defeats and, in a third election cycle, caused his party to suffer more disappointment?

We don't have to guess. Trump accused Mitt Romney of "choking" his bid for the presidency. Romney lost to a far more formidable opponent than Joe Biden.

Trump, by his own standards, is a choke artist.

Trump choked the 2018 elections by needlessly alienating suburbanites and swing voters with his over-the-top rhetoric. He choked the pandemic, which led to him losing the 2020 election. He choked the Georgia portions of that election, including the two winnable Senate races the GOP lost.

I'm old enough to remember when normal candidates, unencumbered by Trump, won Georgia statewide races. In fact, it happened yesterday….

Read the whole thing.

As I type, a shipment weighing 550 pounds is heading direct from the printing press to the Mayflower D.C. I haven't even seen copies of the Second Edition of An Introduction to Constitutional Law yet. But they will be on premises shortly.

On Friday at 2:00 p.m., Randy and I will signing copies of the paperback at the Federalist Society Convention. This will be your first opportunity to snag a copy. Amazon will not deliver for a few more weeks. We hope you can stop by. David Bernstein will also be signing his new book, Classified.

Alas, the illustrated hardcover edition, which will not be ready for sale. (Much to our consternation, "supply chain" problems delayed the publication of this glossy, hardcover book.) But, we will be signing adhesive book plates for those who pre-order the coffee table book. Place your order today.

Our books have already shot to the top of Amazon's best-seller category for Constitutional Law books. We occupy three of the top four slots.

Exactly one year ago, the Federalist Society held its National Lawyers Convention. And exactly one year ago, the Supreme Court was enmeshed in the abortion debate on two fronts. First, Jonathan Mitchell, also known as "The Genius," foisted the impermeable fetal heartbeat law on the judiciary. Second, Mississippi's fifteen-week abortion ban was slated for oral argument. At the time, we were warned about the parade of horribles that would fall if the Supreme Court allowed either of these laws to go into effect.

One year later the story looks very different--especially after election day. In Kansas, voters rejected a ballot measure that would have reversed a state supreme court decision that protected abortion. And all the justices who joined that opinion, as well as several other justices appointed by the Democratic governor, were retained. Voters in several states also rejected efforts to scale back abortion rights. In Kentucky, 53% of voters rejected a referendum that would have stated there was no right to abortion under the state constitution. In Montana, 53% of voters rejected a "born alive" amendment to the state constitution. In Michigan, 56% of voters approved a referendum that protects a right to abortion, and wipes out a 1931 law that banned the procedure.

Justice Scalia's clarion call in Casey rings true three decades later:

Quite to the contrary, by foreclosing all democratic outlet for the deep passions this issue arouses, by banishing the issue from the political forum that gives all participants, even the losers, the satisfaction of a fair hearing and an honest fight, by continuing the imposition of a rigid national rule instead of allowing for regional differences, the Court merely prolongs and intensifies the anguish. We should get out of this area, where we have no right to be, and where we do neither ourselves nor the country any good by remaining.

Justice Breyer should be proud that Dobbs is making democracy work.

As a general matter, I no longer pay attention to predictions that the sky will fall after a conservative Supreme Court victory. The sky did not fall after Heller. The sky did not fall after Citizens United. The sky did not fall after Shelby County. The sky did not fall after Hobby Lobby. The sky did not fall after Rucho. And so on. The sky will not fall after Dobbs.

I was asked to give some brief remarks on the affirmative action cases at a panel discussion at the University of Baltimore today. I typed up some notes, and I thought they were worth sharing:

• I think at least seven Justices, including Kagan on the left, converged on the notion that given the requirement of strict scrutiny for racial classifications, that use of such classifications for admissions must be narrowly tailored to serve a compelling interest—that universities must seriously consider and to a significant extent exhaust non-racial alternatives to achieve diversity before using racial preferences. If Kennedy and O'Connor were still the swing votes, I could imagine a narrow opinion along those lines, saying that Harvard's and UNC's admissions policies did not pass strict scrutiny because they did not properly explore and try race-neutral alternatives, such as eliminating alumni preferences.
• But I don't expect such a narrow opinion. First, the Court has grown more conservative. Second, I think the conservatives gave the clear impression that they think the defendants and similarly situated schools have been openly cheating—the Court keeps telling them they need to use race is a narrowly tailored way, and they keep acting as if the Court told them they could do whatever they want so long as they don't use hard quotas. Unlike Justice O'Connor in Grutter and Justice Powell in Bakke before her, I don't think anyone in the current majority trusts universities to obey any rule that provides any wiggle room. It doesn't help that the conservative Justices are personas non grata at elite universities these days. Recall that Justice Kavanaugh was teaching at Harvard until totally unsubstantiated allegations of a decades-old sexual assault were leveled against him, at which point he lost that gig. The Justices' ties to the elite establishment are much weaker than they once were.
• I thought it was a terrible strategy by UNC's lawyer, and Harvard's to a lesser extent, to deny that race can be a dispositive factor in admission. You can't with a straight face argue that race is never dispositive, but banning the university from considering race will lead to a plunge in diversity. That's mathematically impossible.
• The Court was much more interested than it has been in previous cases as to whether the classifications used by the universities are coherent and really are diversity-enhancing. Justice Alito pressed UNC's lawyer on why it makes sense to use "Asian American" as a diversity classification when it encompasses everyone from Afghans to Filipinos (though in fact Afghans are officially white, but you could substitute Pakistanis). Justice Kavanaugh asked which box Middle Eastern Americans should check off, I think trying to raise the point that many people think of Middle Easterners as people of color who would add to diversity, but are classified by the Common App and by universities as white. Remarkably, the attorney claimed not to know the answer, even though the Common App specifically puts Middle Easterners into the white category.
• More generally, there has been a real shift from the dynamics of Bakke in 1978 to the situation today. In Bakke, while most students admitted into the quota program in that case were Chicano or Asian American, the debate was almost entirely over whether affirmative action may be used to make up for discrimination against African Americans, with slots that would have otherwise gone to white applicants. In the last 44 years, the US has grown much more ethnically and racially diverse, such that 25% of the 18 year population is Hispanic compared to 15% African American, and Asian Americans, around 1% of the population in 1978, are now more like 7%, and draw from an incredible array of countries and cultures. This really complicates the debate, as the beneficiaries of affirmative action are no longer primarily black Americans, and at least in elite university admissions, those who may be subject to higher standards in admissions are often Asian rather than white, and Harvard in particular seems to make it more difficult for people classified as Asian to be admitted than whites.
• Justice Kavanaugh, interestingly, suggested a possible compromise that brings us back the original impetus for affirmative action. He asked whether universities could implement a preference for descendants of American slaves, as a non-racial classification that would therefore not be subject to strict scrutiny.