The Volokh Conspiracy

The first sentence: "I hope the Yankees win the World Series."

I was born in 1951 in Brooklyn, and grew up there, leaving for college in 1968.  I was a very passionate Dodgers fan, as was pretty much everyone else I knew. Several Dodger players lived in our neighborhood, including the great Gil Hodges, after whom my elementary school, formerly PS 193, is now named. The Dodgers in the '50s were easy to love: Hodges, Jackie Robinson, Roy Campanella, PeeWee Reese, Duke Snider . . .  a fabulous squad that made the World Series four times in the 50's ('52, '53, '55, and '56), winning their first and only title, gloriously, in the thrilling 7-game 1955 Series versus the Yankees.

I was devastated when the Dodgers abandoned Brooklyn after the 1957 season. Though I was only six years old, I remember it vividly; it was the first time in my life that I understood that the world could be a cruel, cruel place. I swore never to forgive them for the betrayal, and I never have.

There's the famous story of Jimmy Breslin and Pete Hamill, two hard-boiled New York City news reporters hailing from Queens and Brooklyn, respectively, having drinks at a bar when they consider the question: who were the three most evil people in human history?  Each writes down his choice on a napkin out of sight of the other, and when they look at the two napkins they're in total agreement: Hitler, Stalin, and Walter O'Malley, the Dodgers' owner who took the Dodgers out to the West Coast.  Exactly how I felt.

Loving the Dodgers in the '50s meant hating, with all your heart, the Yankees. The Yankees were the implacable foe, having beaten the Dodgers in the World Series in six of their seven meetings ('41, '47, '49, '52,'53, and '56). While the Dodgers were building their formidable squad in the late '40s/early '50s, the Yankees were, alas, a step (or two or three) ahead of them, far and away the best team on the planet; between 1949 and 1961 they won eight World Series titles, with a awe-inspiring lineup - Mantle, Berra, Moose Skowron, Whitey Ford, Roger Maris, Tony Kubek, etc. etc. - all of whom I detested with every bone in my young body. The idea of switching allegiance to them - they were, after all, the only team left in NYC after the Giants followed the Dodgers out west in 1958 - was absurd, and I can't remember a single person from my childhood who did so.

In 1941, the Germans invaded Russia.  So, given the choice between Hitler and Stalin, who do you root for?  We chose Stalin - clearly, at the time, the lesser of two evils.  So I'm going for the Yankees; their crime - being spectacularly good for an amazingly long period of time - does not reach the depths of the Dodgers' immorality.

Predictably enough, given that the baseball gods have rarely been kind to me, the one time I'm rooting for them, they stink, having apparently forgotten how to hit.

The second sentence (in a more serious vein): "Tens of millions of my fellow-citizens  - perhaps even a majority - appear to be poised to elect, as President, a man who tried to overthrow the constitutionally-elected government of the United States."

I cannot wrap my mind around it. As anyone who has read my postings in the past is well aware, I'm no fan of Donald Trump. For any number of reasons - the compulsive lying, the hate-infused rants, the fact that he was the first President since Herbert Hoover to have left office with a net job loss during his four years as President, the shameful kissing-up to Putin and Kim Jong Un, his tariff policy, the threats to pull out of NATO, . . . - I think he was a terrible President during his first term and would almost certainly be a terrible President the second time around.

But put all of that aside.  I get it - people have divergent views about all of those things. That's just politics.

But I would have thought that the vast majority of Americans would view attempting to overthrow the government through unconstitutional means as a total disqualification for holding the highest office in the land, and would not countenance casting their vote for anyone who participated in such an attempt.

Do the folks pulling Trump's lever not believe that he was a willing and active participant in the overthrow scheme, involving, as it did, the Jan. 6 attack on the Capitol, the pressure on Vice-President Pence to single-handedly overturn the election results, the "fake elector" schemes, the threatening phone calls to State election officials? Or do they view all that as not being of sufficient moment to disqualify someone from getting their vote for President - perhaps formally, via Section 3 of the 14th Amendment, or just as a matter of common sense and a sense of duty to their fellow-citizens?

Like I said, I don't understand it. I'm hopeful that one of my readers can explain to me which of those possibilities is closer to the truth of the matter, and why, in either case, we shouldn't be terrified about that.

On Wednesday, I was honored to hear Judge Amul Thapar deliver the Story Lecture at the Heritage Foundation. The theme of his lecture is that originalists courts need originalist classrooms. I couldn't agree more. At most law schools, originalism is taught, if at all, as something of a strawman. Professors will introduce it, briefly, and then spend the bulk of time explaining why the doctrine is incoherent. I can count on two hands the number of originalist constitutional law professors in the United States. Law schools are derelict in not hiring more of these scholars. Even if faculties reject originalism, they must recognize that courts are receptive of these arguments, and students need to be trained on originalism.

However, it seems that a different facet of Judge Thapar's remarks made headlines. Judge Thapar offered a proposal of how to ensure that law schools promote originalism.

"Make no mistake: money talks. Only when the taxpayers and donors alike demand it will law schools start to change," Thapar said. "When law schools do change, the hefty price paid for a law degree might actually be worth it, because lawyers will leave law school equipped to practice in today's courts."

Indeed, many legislatures in conservative states are taking a closer look at university curriculums. And several states have established classical institutes within colleges, some of which can confer degrees, to provide students with a different approach to knowledge. But these alternative institutions are unlikely to affect the actual curriculums of accredited law school. Moreover, many conservative donors have halted donations to universities--especially in the wake of October 7.

And to be fair, there are costs to these approaches. If a legislature, or donor, withholds money from a law school, that will have a negative impact on many innocent actors. Law students have little control over what is taught, yet they will likely feel the brunt of any cut in funding. Even originalist professors, a discrete and insular minority, may feel the burn of reduced funding. Still, Judge Thapar seems to support this divestment from institutions that do not teach originalism.

In addition to divestment, there is another approach to fostering change: boycotts. I speak, of course, about the boycotts promoted by Judges Ho, Branch, and others. These judges have declined to hire law clerks from certain law schools based on their policies concerning free speech and anti-semitism. These boycotts are prospective, and only apply to students who choose to go to a school after the boycott is announced. The boycotts are a far more narrowly tailored approach than divestment. Rather than cutting funding throughout a law school, these judges are only withholding a very specific prestige point: federal clerkships. To be sure, both divestment and boycotts harm innocent people. But I think boycotts are far less harmful than divestment, because of their targeted nature.

During the Q&A session, Judge Thapar was asked about the boycotts by Judges Ho and Branch. Here is his answer, roughly transcribed (42:!5):

Thapar: … I appreciate that that's the tack they've taken and that every judge should choose what tact is best for them. I think for me I think speaking out about it's important putting pressure through donors and taxpayers as I mentioned I think is critical the reason is is I don't think as much as you know we may think.

I don't think kids in the military that are going to law school right now are paying attention to what Amul Thapar is saying or any of my colleagues. I think they have much bigger things to worry about about and I don't know that those students should be excluded.

I worry that there's kids like myself that went to law school. I didn't even know what a clerkship was. I'm still the only person in my extended family that went to law school I had no guidance. And I just showed up.  I wasn't even a conservative then. I was a nothing right. I was a normal college kid that enjoyed College, played Sports, had fun, probably drank a little too much, and and went to law school.

And I got there and I thought I was going to be interpreting text interpreting law that's just kind of logically, if you have no idea you think that's what you're going to do and then you get there. And it's craziness and a lot of those kids I think either quietly or vocally moved to the right during law school.

And so I struggle with excluding a whole group of essentially students that believe in originalism or want to do originalism to punish their law school now. I'm not saying it might not be effective. I'm not saying the Jim [Ho] and Lisa [Branch] haven't made great strides. I'm saying it's just not the tact I and others have taken because we want to encourage the schools to change we're very vocal about it at the same time we don't want to punish the very students that uh believe in originalism as a result.

Thankfully, as Hamilton explained, judges do not have the power of the purse, so they have no power over the budgets of the states. But judges do have authority over who they hire. Both divestment and boycott will hurt innocent bystanders. If Judge Ho refuses to hire originalist students at Yale, a small number of those elite students will lose a particular line on their sterling resumes. If the Kentucky legislature defunds the University of Kentucky Law School for not hiring originalists, all originalist students at Kentucky would suffer. At this point, then, the only question is about which means you prefer.

Back in August, I had two very long posts about the Fifth Circuit's remarkable decision in United States v. Smith on geofence warrants, which ruled not only that geofencing requires a warrant but that geofencing warrants are categorically unconstitutional.   I had this post strongly criticizing the decision on August 13, and this follow-up debate with the ACLU on August 16th.

I thought I would flag that this week the Justice Department filed its petition for rehearing.   It begins:

The U.S. Attorney's Office for the Northern District of Mississippi seeks rehearing en banc because the panel's decision conflicts with the decisions of multiple other courts of appeals, misreads applicable Supreme Court precedent, and presents far-reaching implications that could prohibit the government's use of important investigative techniques. Every other U.S. Attorney's Office in the Fifth Circuit joins this petition.

As you might guess from my earlier posts, I hope rehearing en banc is granted. As always, stay tuned.