The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002

The Volokh Conspiracy

"Strangers on the Internet" Podcast Ep. 62: Dilan Esper Follow-up on Joshua Wright's Lawsuits

Unpacking the legal claims while the WSJ coverage unfolds

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Over the last few days, the Wall Street Journal has printed a three-part expose about alleged wrongdoing in both the personal and professional arenas by ex-George Mason University (GMU) law professor and former FTC Commissioner Joshua Wright (part 1, part 2, and part 3). These allegations include sexual misconduct as well as various forms of corrupt behavior meant to benefit big tech companies to the tune of millions of dollars a year in profit to himself.

At the same time that the WSJ series was coming out, I invited back on the "Strangers on the Internet" podcast Dilan Esper, an experienced litigator in areas that include defamation law and the First Amendment, for us to analyze in today's episode the most recent legal developments in two lawsuits that Josh has launched (our first conversation is available here, and previous episodes on this story are available here for my interview with Prof. Christa Laser, here with Prof. Brandy Wagstaff, and here with Aliza Shatzman).

The first lawsuit is Josh's defamation legal action against two of the women who accused him of sexual misconduct--Elyse Dorsey and Angela Landry--where the judge allowed the lawsuit to proceed past a successful motion to dismiss after Josh amended his complaint. The second is a sex discrimination lawsuit where Josh is suing his former employer GMU for the way it handled his complaint, arguing that the university prematurely sided with his alleged victims because he is a man.

Dilan explains to listeners why he thinks that Josh's legal actions will neither succeed in court nor help to restore his reputation, and why some of Josh's painting himself as a victim of the #metoo movement in legal filings may be motivated by his hoping to get future benefits from fellow Title IX critics. Dilan also discusses the use of defamation lawsuits generally in responding to sexual allegations, including based on his experience representing one of Bill Cosby's victims.

Note: According to a statement printed in the media by Lindsay McKasson, counsel to Joshua Wright at Binall Law Group "all allegations of sexual misconduct are false," "These false allegations are being made public after unsuccessfully demanding millions of dollars behind closed doors," and "We look forward to total vindication in court." According to a tweet by Prof. Christa Laser, "I don't appreciate that his attorney falsely suggests we are all lying (1/2 was in writing!) & want $ (this is a lie–I only want him gone)."

Free Speech

Journal of Free Speech Law: "Fiction, Defamation, and Freedom of Speech," by Prof. Collin O'Neil

An article from the Defamation: Philosophical and Legal Perspectives symposium, sponsored by the Center for Legal Philosophy at UC Irvine.

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The article is here; the Abstract:

Speech damages someone's reputation when it leads others to believe that that person has done something that reflects poorly on their character. When that belief is also false the reputational damage is undeserved, and it is the point of American defamation law to protect individuals from suffering such undeserved reputational damage.

It is easy to understand why individuals would need protection from false and derogatory claims made about them in works of nonfiction, such as journalism, documentaries, and biographies. But it is not immediately clear why individuals would also need protection from fiction. Although authors of fiction often base their fictional characters on real people, they do not typically make real people characters in their stories. Even when they do put real people in their stories and depict them as doing bad things, the audience is still usually meant only to imagine the real people doing those bad things.

Nevertheless, some works of fiction are not only about real people but also do real and undeserved damage to their reputations. It may not be true, as has often been alleged, that Aristophanes's comedy The Clouds gave Socrates the reputation for rejecting the gods and corrupting the young that later led to his execution. But readers of parodies of news articles published on sites like The Onion and The Babylon Bee are sometimes duped, especially when they are already inclined to think poorly of the public figure that is being ridiculed.

Of course parodies are believed only when they are not recognized as parodies. But there are other genres of fiction that mix facts into the story, such as biofiction, biopics, and docudramas, and it is not always easy for audiences to distinguish what the author is making up from what the author is, or ought to be, trying to get right.

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KBJ and Beyoncé

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Justice Jackson's 2023 financial disclosure report revealed that she received four concert tickets from Beyoncé Knowles-Carter, valuing about $3,700. Patricia McCabe, the Supreme Court's Public Information Officer, released a statement: "Justice Jackson is 'Crazy in Love' with Beyoncé's music. Who isn't?" (For those outside the hive, Beyoncé and her now-husband, Shawn Carter, a/k/a Jay-Z, recorded a hit song in 2003 titled Crazy in Love.) I am fairly confident that McCabe's comment came directly from Justice Jackson. I can't fathom a restrained public affairs official would volunteer this line on her own.

Since the press was too star-struck to provide any scrutiny for this gift--to the left, to the left, as usual--I will.

First, how is it appropriate for the Supreme Court's press office to promote a Beyoncé song? Look at it this way: The celebrity gives free tickets to a Justice, and the Justice responds by highlighting how awesome Beyoncé's music is through the press office. Does no one see the problem? Can you fathom what would happen if Clarence Thomas issued a statement: "Who isn't in love with Harlan Crow's yacht"? Or what if Lee Greenwood gave Justice Alito concert tickets, and PIO issued this statement: "God bless the U.S.A. Who isn't Proud to be an American?" (Put that on a flag!) Again, there was a serious lapse in judgment here. But crickets from all the usual critics.

Second, it is true that millions of Americans love Beyoncé. And I'm sure there were many people inside the Beltway who would have loved free tickets to her concert at FedEx field. But Beyoncé does not hand out free tickets to her fans. How is it that KBJ scored four tickets? Did Jackson have some sort of pre-existing friendship with Beyoncé?  Did Jackson have some sort of pre-existing friendship with Oprah Winfrey, who gave her a $1,200 congratulatory floral arrangement in 2022? Why does this matter? When a real friend provides a gift, the understanding is that the gift is given due to some sort of genuine affection or prior relationship. But when a stranger, or a new friend provides a gift, the understanding is that the gift is to curry influence. When you become a Supreme Court Justice, you get lots of new "friends." There is no such thing as a free lunch. Assuming Jackson had no prior relationship with Beyoncé or Oprah, it is a fair guess that the floral arrangement and concert tickets were designed to have some influence on the Justice. And it worked--she promoted a Beyoncé song on Supreme Court stationary! What an advertisement.

Third, these sort of gifts also perform a signaling function. Rule like Justice Jackson, and you will be feted by celebrities. Rule like Justice Kavanaugh and you can buy your tickets on StubHub. And what if Justice Jackson, like her namesake Robert H. Jackson, drifts to the right over her tenure? Would she still be invited to attend elite concerts? You know the answer is no. Poor Justice Kennedy gave the left Casey, Romer, Lawrence, Windsor, Whoel Woman's Health, Obergefell, and so much more, but his "legacy" was tarnished by Trump v. Hawaii. And if I had to guess, these seats were in a private suite. The average ticket price was about $290, with the highest average ticket price was $651. What other celebrities were hanging out in that suite? The face-value for a ticket in these suites is misleading--the actual value is priceless. This gift, and other gifts like it, have the effect of keeping a Justice in place. The rules fully permit these gifts, so long as they are disclosed. But the impact of the gift is unmistakeable.

Now I do not think Jackson's jurisprudence would actually be affected by this gift, or others. I've been pleasantly surprised by some of her opinions so far. She has an independent streak that is somewhat unpredictable. But I can say the same about Justice Thomas's gifts. For all the outrage about Justice Thomas, no one doubts that he and Harlan Crow are genuine friends. They met nearly three decades ago, and have forged a close bond. Whatever generosity that Crow shares with Thomas is based on a kinship and connection that has been developed for years. I know that critics do not believe this, but it is true: Crow's trips for Thomas would in no way affect his jurisprudence. I've heard stories about how not even Justice Thomas's clerks can persuade him to change his mind. The man is a rock.

At bottom, Justice Jackson is praised for accepting largesse from the right kind of billionaire, while Justice Thomas is excoriated for accepting largesse from the wrong kind of billionaire.

Libertarianism

David Boaz's Final Speech: "The Rise of Illiberalism in the Shadow of Liberal Triumph"

In a speech given in February, the late great libertarian intellectual leader made important points about the past, present, and future of liberty.

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David Boaz. (Cato Institute)

 

Longtime Cato Institute vice president David Boaz passed away on June 7. He was one of the most effective and principled advocates for libertarianism in our time. In his last major public speech, delivered at a Students for Liberty conference in February, David cautioned us against excessive pessimism, but also warned about the dangerous rise of illiberal nationalism as a major threat to freedom around the world. The speech was transcribed by Andy Craig, and is reprinted here with permission:

Too often, libertarians (and also conservatives) believe that we are actually on the road to serfdom. I want to give you a more optimistic view along with a warning and a challenge. I'm going to start with some history.

For millennia, with few exceptions, the world was marked by despotism, slavery, hierarchy, rigid class privilege, and literally no increase in the standard of living over hundreds of years. And then, the Western world experienced the Enlightenment, a new perspective on the world based on reason, science, a belief in progress, and freedom.

And the ideas about freedom eventually came to be known as liberalism. Human rights, markets, property rights, religious toleration, the value of commerce, the dignity of the individual. Life, liberty and the pursuit of happiness. Peace, human flourishing.

That brought about what Deirdre McCloskey calls the Great Fact of human history, the enormous and unprecedented growth in living standards, starting around 1800 in the Western world. And these ideas spread to more aspects of society and more parts of the world. They gave Europe a century of peace and progress, from roughly 1815 to 1914. The Great Fact spread from Northwestern Europe and America to the rest of Europe, to Latin America, to parts of Asia.

Liberal ideas were never perfectly realized. When they faded in the late 19th century, we got World War I, trade war, the Great Depression, and World War II, and some countries endured the horrors of communism and national socialism. Mercantilism, cronyism, bigotry and discrimination, political murders, authoritarianism, plagued and still plague parts of the world.

Even in our own country, in my own lifetime—and the interesting thing is most of these things are no longer true in your lifetime—but in my country, in my lifetime, we lived with military conscription, 90% marginal income tax rates, wage and price controls, restricted entry to transportation and communications, indecency laws, and Jim Crow.

It's a lot of change. Progress has been happening. After World War II, a renewed commitment to free trade, international rule of law, and constitutional liberal democracy brought about another long period of great power peace and prosperity. And the spread of property rights and market institutions to China, India, Latin, America, and even Africa has brought more than a billion people out of extreme poverty in just 25 years.

More and more of the world is respecting equal rights for people regardless of color, gender, religion, sexuality or language. Equal rights based on our common humanity. It was our liberal ideas that brought that about, and we should take pride in that. Of course, now we're more likely to call those liberal ideas libertarian, but our job is not done. We face the rise of illiberalism on both left and right in the United States and around the world with threats to liberty, democracy, trade, growth, and peace.

And so it remains to us to defend the constitutional order of our republic, to remind people over and over of the wonders that America has produced, how rare freedom and abundance have been in the world and the rules that are essential to their continuance.

There was a book some years ago called All I Really Need To Know I Learned in Kindergarten. Well, everything you need to know about politics, in a way, you learn in kindergarten, the fundamentals of freedom, the fundamentals of civilization: Don't hit other people, don't take their stuff, and keep your promises. If you apply those rules, you'll have a prosperous and peaceful society.

One more idea you wouldn't think needed to be said, is we libertarians, like most of us Americans, are liberals. Liberalism is a universal creed. We believe that all people are endowed with inalienable rights, that among these are life, liberty, and the pursuit of happiness. Not just some people. That idea is incompatible with political ideas based on 'blood and soil' or treating people differently because of race or religion.

So when you see self-proclaimed freedom advocates talking about blood and soil or helping a would-be autocrat overturn an election, or talking about LGBT equality as degeneracy, or saying we shouldn't care about government racism against Black people, or defending the Confederacy and the cause of the South, or joining right-wing culture wars and supporting politicians who want to use the state to fight their enemies, or posting Holocaust jokes and death threats on Twitter, recognize that for what it is. Speak up, fight back, tell people that's not America and it's certainly not libertarianism.

And while it's not actually un-libertarian to be anti-vaccine, it's stupid, and I'd rather recruit smart people. Can you believe that there are people who think an environmental extremist, tax-hiking, gun-grabbing, big spender who's also an anti-vaccine crank, would make a good Libertarian Party candidate? Meanwhile, before I move on, I just want to remind you, taxation is theft.

We libertarians spend a lot of time talking about what we're against, high taxes, unnecessary wars, crony capitalism, over-criminalization, treating people unequally because of who they are. And we should talk more about what we're for. As our Cato Institute mission statement says, individual rights, limited government, free markets and peace. But more than that, we're for those things because they help us achieve abundance and social harmony and human dignity and human flourishing. We want everyone to flourish, to be free, to pursue happiness in his or her or their own way.

I'm always happy to quote George Washington's letter to the Newport Synagogue. It's a little bit of archaic language. "It is now no more that toleration is spoken of as if it was by the indulgence of one class of people that another enjoyed the exercise of their inherent natural rights. For happily, the government of the United States gives to bigotry, no sanction to persecution, no assistance."

Libertarian ideas are radical, yet deeply rooted in Western tradition, and we have a record to be proud of. We've been fighting ignorance, superstition, privilege and power for several centuries, and it is to those ideas and that struggle that we owe the best parts of our civilization. More often than libertarians often recognize, we live in a world of freedom and progress, imperfect freedom and imperfect progress to be sure, but real. We have extended the promises of the Declaration of Independence, life, liberty and the pursuit of happiness — I say that a lot, I like that phrase — to people to whom they had long been denied.

Around the world, more people in more countries than ever before in history enjoy religious freedom, personal freedom, democratic governance, the freedom to own and trade property, the chance to start a business, equal rights, civility, respect, a higher standard of living, and a longer life expectancy, and it is libertarian ideas and libertarian-minded people who have made that happen. We need to fight for those gains, especially here in America where the right and the left are battling over who gets to do the most to destroy liberty.

I was asked once by some skeptics what the most important libertarian accomplishment ever was. I thought for a moment and said the abolition of slavery. "Okay," they conceded. "Name another." Now, I thought if you had the abolition of slavery on your resume, you're ready to meet your maker. That's pretty good.

But I thought more carefully, and I said, bringing power under the rule of law. That was a revolutionary achievement. Constitutions, divided powers, consent of the governed, all of those things helped to constrain the natural human instinct to gain power over others. And constraining that instinct for power is our revolutionary achievement, but it's still incomplete.

It's what the Levellers and John Locke and the American Founders fought for, and the abolitionists. It's what the protesters in 1989 against communism fought for. It's what our friends in Russia and China and Egypt and Ukraine and Hong Kong fight for in challenging circumstances that we never face. It's what we fight for.

But nothing is guaranteed. Ideas we thought were dead are back. Socialism, protectionism, ethnic nationalism, anti-semitism. In what was once Ronald Reagan's party, we see people advocating something called national conservatism, which is old-fashioned, big government dressed up in new clothes. Protectionism, control of private enterprise, scapegoating of minorities.

They denounce the Enlightenment and liberalism. Some of them even advocate imposing a national religion. And that's why our job is not done. We now confront the rise of illiberalism on both left and right with threats to peace, liberty, democracy, trade and growth.

Our ancestors have faced similar challenges. Imagine the American Revolutionaries who thought they could take on the most powerful military in the world, and yet they dared and they won. Then they wrote a Declaration of Independence that is the most eloquent piece of libertarian writing in history, and they wrote a Constitution that did the things I'm talking about, putting constraints on power, dividing it between the three branches, dividing it between the two houses of Congress, dividing it between the states and the federal government. All of those kinds of things are classical liberal ideas that were first really brought forth here in America, and that's our heritage and that's our legacy.

But it keeps coming back. We also had the abolitionists who had to fight tyranny as well. There are some people who disparage talking about slavery. It's over, that's good, we should be proud of that. But we should also remember that when some people talk about the good old days, as if there was more freedom in the 19th century, when four million Americans were held in chattel slavery, held in bonds before the Civil War. So it was not exactly what you'd call a free society. And we could go through a lot of other things too, the restrictions on women's rights. God knows restrictions on gay rights wasn't even something people thought of, but people who were gay knew damn well they should keep it quiet.

Closer to our own time, in the 1940s, in the darkest days of war and a growing welfare state, three remarkable women stood up to challenge the establishment. Isabel Paterson, Rose Wilder Lane, and Ayn Rand, warned Americans that we were losing our founding values and freedoms, and they launched a movement. And some writers have said, "Why was it women who stood up? Where were the men? What were they doing?" Well, there were men. All three of those women wrote a book in 1943. In 1944, Hayek wrote The Road to Serfdom. So it wasn't just women, but we did have three founding mothers of the modern libertarian movement, and I think we don't make enough of that. We should have their pictures on everything.

I just read Tim Sandefur's book, Freedom's Furies, about these three women, and one of the things I kept noticing was everything he quotes from Isabel Paterson, it's like things we say today about big government. She anticipated it all, or maybe we got it all from her even though we don't know it. So that happened in the 1940s and they started a movement. In the 1970s, in the face of the government's three great accomplishments, Vietnam, Watergate, and stagflation, great scholars like Hayek and Friedman criticized the government's economic policies.

And along with some younger scholars, some of whom are now older scholars whose names you've heard, they changed them, and they launched another movement that restored a lot of American economic freedom. Not all of it, and some bad things kept happening, but we did make a lot of progress over the few years after that in repealing a lot of bad economic restrictions.

And now it's your turn to pick up the banner of liberty. Don't let it go. Fight illiberalism and authoritarianism wherever you find it. Extend liberty to more parts of the world and more parts of life. And make the 21st century the most liberal century yet. Thank you very much and good luck.

I don't fully agree with every point here. It's probably impossible to cover so much ground in so short a time without some oversimplification. But the core message is sound, and well-worth heeding.

Although we lack David's eloquence, Cato Institute scholar Alex Nowrasteh and I explained why the rise of nationalism is a major menace to liberty in somewhat greater detail in our recent National Affairs article, "The Case Against Nationalism."

No one person can replace David Boaz. But we can, as he said, "pick up the banner of liberty" and work to raise it to new heights.

The Left Wing Attack on Judicial Independence and on Justice Alito

The left has abolished the secret ballot and legalized fraud-friendly mail in voting. now they want to destroy our independent judiciary

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The Left wing attack on our traditional forms of constitutional democracy has had great success in abolishing cherished institutions like the secret ballot and same day voting. Emboldened by these wins, the Left has set its sights on eliminating judicial independence. Hate filled ethics attacks have been made on Justices Thomas and Alito. The Left is so mad about the overruling of Roe v. Wade, 410 U.S. 113 (1973), the abortion rights case, that they are now trying to force the Supreme Court's two most principled and brilliant members into resigning or recusing themselves from participating in important cases about the 2020 and 2024 elections, which they have a constitutional duty to help decide.

I wrote last winter on this blog that Justice Thomas's opinions show a steadfast devotion to the rule of law and are quite simply excellent on the merits. Not only is Justice Thomas incapable of being bribed, he is actually the best justice ever to serve on the Supreme Court in 234 years of American history. No one could read Justice Thomas's opinions and fail to be impressed by them. It is obvious on the face of things that Justice Thomas would never alter a word that he writes because of a gift from a friend.

The Left's attack on Justice Alito is based on an objection to the Justice's wife flying the U.S. flag upside down -- a distress signal used by some but not by Justice Alito's wife -- after the events of January 6, 2021. Justice Alito's wife raised the American flag in response to a dispute with a quarrelsome neighbor. A CNN poll on July 25, 2023 showed that nearly 70% of all Republicans think the 2020 presidential election was, in effect, stolen.

Under these circumstances, Justice Alito's wife has a First Amendment right to fly the U.S. flag in distress mode or to fly a Christian Appeal to Heaven flag to express her dismay and distress over anything at all. I well remember the parade of left wing law professors who hailed the U.S. Supreme Court's decision in Texas v. Johnson, 491 U.S. 397 (1989) that Americans have a First Amendment constitutional right to burn the flag to express their opposition to something the U.S. government was then doing. The opinion in Texas v. Johnson was written by liberal giant William J. Brennan and was joined by Justices Thurgood Marshall, Harry Blackmun, Antonin Scalia, and Anthony M. Kennedy.  It has been widely hailed by left and right wing law professors for 35 years as part of the gold standard on freedom of expression protections. Obviously, if you have a First Amendment right to burn the flag to express yourself, you have a First Amendment right to fly it in distress mode or to fly the Appeal to Heaven flag to express yourself.

Justices Thomas and Alito have quite appropriately stayed out of politics themselves, but it is unreasonable for the Left to demand that their wives stay out of politics too.  In this case, Justice Alito's wife was not even attempting to express a political idea.  The Left's recent practice of outing the behavior of the justices' wives is unprecedented, bullying, and unconstitutional insofar as it affects the Justices wives' exercise of their own First Amendment rights. The Left is demanding that, because of their wives' behavior, Justices Thomas and Alito should recuse themselves from Trump-related election cases. This outrageous demand just shows again that the Left is apoplectic that its 85 year choke hold on the Supreme Court majority has been broken. Justices Thomas and Alito should do their duty under the Constitution, which they swore to uphold, and they should sit on all the election related cases from 2020 or 2024 that come before the Supreme Court.

The Left should be ashamed of itself for seeking to politicize our independent, life tenured, judiciary.  Left. to their own devices, the Left would take a wrecking ball to all of our constitutional rights and freedoms. Thank God that we have men and women on the Supreme Court who are willing to stand up for the Constitution notwithstanding the hell that the Left has made of their lives. The Republican Justices have to travel in public in a cocoon of U.S. Marshall's who are hyper-vigilant about their safety. The Justices cannot walk into a store or restaurant without being accosted. This is how constitutional democracies die, my friends. We should denounce in the strongest possible terms those who threaten the independence of our life tenured judiciary.

Lessons from the 2020 Presidential Election

The importance of the secret ballot and of same day voting

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In my post yesterday about the 2020 presidential election, I argued that the widespread use of mail in voting because of Covid distorted the election's results. It did so because when people vote at home instead of in a voting booth with a curtain drawn behind them, family members and partisan canvassers observe how those people vote.  The voter will inevitably feel pressure from family members and the canvaser that he would not feel if he voted in a traditional voting booth.

The second problem with mail-in voting is that the headlines and news are constantly changing. The goal of an election should be to capture voter sentiment on Election Day, not election month. All voters should have the same state of the nation and the world in mind when they cast their ballots.

I do not think there was fraud in the counting of votes or vote machine error in the 2020 presidential election. I did therefore misspeak in writing that the results of mail in voting in 2020 were fraudulent. But, I do think that the outcome of the 2020 election was changed because of the use of mail in voting and that this may explain why President Trump lost the counted vote in 2020. People casting votes at home with other people looking at how they were voting probably felt pressure not to vote for President Trump's re-election.

Going forward, President Trump is calling today for the GOP to invest massively in mail in voting, which is perfectly sensible if the Democrats are going to engage in it. A better longterm outcome would be to get back to the secret ballot and have everyone vote in person on one day -- Election Day.

The Left's Attack on the Secret Ballot and on Same Day Voting

Mail in voting over a period of weeks with drop boxes eliminates the secret ballot, and the need for everyone to vote on the same day, with the same headlines in mind, and not over the period of a month.

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Using the the Covid pandemic as an excuse, the Left in 2020 massively changed the way presidential elections are held in this country. Whereas previously the secret ballot and same day voting was the norm, and one needed an excuse to get an absentee ballot, suddenly the Left declared it was essential to switch to mail in voting, for any reason at all, over a period of many weeks.

Swarms of Democratic vote canvassers knocked on the doors of thousands of people who had not yet voted "by mail" and offered to "help" them "make their vote count". Ballots were filled in by voters at home. possibly with canvassers or family members, "observing" how each person voted. Canvassers then "offered" to deliver the "harvested ballots" to "drop boxes" saving voters the trouble of turning them in themselves. The net result was that Donald Trump got more votes in Pennsylvania in 2020 than Barack Obama had in either 2008 or in 2012, but he still fell 80,555 votes short of Joe Biden because "mail-in" voting with no secret ballot and canvassers conveying your ballot for you to the polls or a drop box was such a hit.

In 2008, Barack Obama got 3,276,363 votes for President in Pennsylvania. In 2012, Barack Obama got 2,990,274 votes for President in Pennsylvania. In 2020, Donald Trump topped both of Obama's vote numbers in 2008 and in 2012 by getting 3,377,674 votes for President in Pennsylvania. Donald Trump exceeded Barack Obama's 2008 vote total in Pennsylvania by 101,311 votes.  Trump "lost" the "counted vote" in Pennsylvania in 2020 by 80,555 because Joe Biden got an "astonishing" 3,458,229 votes in Pennsylvania in 2020.

I do not myself believe that there was fraud in the counting of ballots or voting machine malfunctions. I do believe, however, that the unprecedented use of mail in voting over a period of many weeks, with the loss of the secret ballot, and drop boxes, produced a fundamentally illegitimate Biden victory in 2020 in Pennsylvania and elsewhere. I simply do not believe that in an honestly held traditionally run presidential election that Joe Biden would get 181,866 more votes for President in 2020 in Pennsylvania than Barack Obama got in 2008.

As a result, many Republicans, myself included, thought that the 2020 presidential election was probably stolen, even though that fact could not be proved in a court of law. President Trump himself did not claim right after the election that mail in voting and the loss of the secret ballot had altered the vote count in the 2020 election. He waited for two weeks and asked for hopeless recounts instead. No recount in Pennsylvania was ever going to erase an 80,555 Biden lead in votes counted at the polls. The margins Trump lost by in Pennsylvania, Wisconsin, Nevada, and Arizona were simply too big to change after endless recounts. Some Republicans, including me, therefore acquiesced in Joe Biden taking office because we thought we had to do that to preserve a facade of democracy absent concrete proof of vote fraud.  But deep down in our guts we thought that Joe Biden's campaign had probably won with dirty tricks, although that could not proved in a court of law.

We did not side with President Trump on January 6, 2021 because we did not want the GOP controlled state legislatures of Pennsylvania, Georgia, Wisconsin, and Arizona to declare Trump re-elected given the returns at the polls. The question was what outcome was worse for our democracy? Going by the vote count on Election Day or letting state legislators pick the President, which had never before been done in American history. Reluctantly, we went along with allowing Joe Biden to be crowned the winner based on the vote count on election day, but we felt then and will always feel that Biden may well have been an illegitimate President.

We disapproved of Trump's behavior on January 6, 2021, not because his claim of election fraud was wrong, but because he as President did not articulate this claim in anything remotely resembling  a compelling way nor did he call on his supporters to forgo violence in the way of a Martin Luther King or a Mahatma Gandhi, and as a result five people died in a riot. The election fraud that wrongly cost Trump his victory in 2020 was caused by mail in voting, drop boxes for ballots, and the loss of the secret ballot. President Trump's mistake was in not complaining much more loudly before the vote was counted that the rules of the game had been rigged against him to produce an undemocratic outcome.

Biden said as a candidate in 2020 that he was a moderate liberal, but he proceeded to govern like Bernie Sanders or Elizabeth Warren except for the refusal of two brave Democrats, Joe Manchin and Kyrsten Sinema, to go along with that nonsense. Manchin and Sinema will both be booted out of the Senate come January 3, 2025, as a result. Biden said as a candidate that he would depoliticize the criminal justice process. Instead, his Department of Justice has used an unconstitutionally appointed Special Prosecutor to indict former President Donald Trump -- the first time in history that a former President has been indicted. Hillary Clinton was given a pass on the misuse of classified documents, but not so Donald Trump. Biden's Democrats even got Trump unconstitutionally convicted for altering business records to conceal the Trump Organization's involvement in First Amendment protected speech in a New York State trial that was truly a charade.

We are now about to choose again between Donald Trump and Joe Biden in a presidential election year - 2024 - which is totally free of the fears of infection in public places caused by Covid. Here are three things we should insist on: 1) a return to truly secret ballots cast in polling booths with the curtain shut behind the voter; 2) no use of drop boxes, and 3) that everyone votes on the same day, with the same headlines in mind, and not over the period of a month.

The loss of the secret ballot, the use of drop boxes, and of same day voting is a huge change in our democracy, which ought to be abandoned now that Covid is gone. You cannot fill out a ballot at home in most cases without your family members knowing how you voted and that means the sudden loss of the secret ballot. Partisan canvassers may also observe how people vote, intimidating them and undermining their independence.

The secret ballot is of central importance in elections, especially when candidates generate the passionate feelings of hatred that are generated by Donald Trump and Joe Biden. This is a hatred that pits family members and even long-time friends against one another sometimes ruining long-cherished relationships. If ever, there was to be a presidential election for which the secret ballot was essential, it is this year's rematch between President Trump and Joe Biden.

It is equally important that all Americans vote on the same day, after the same news cycle, with the same information before them. Ballots arriving by mail day after day, after Election Day, discourages confidence that an election has been fair. If you are in the military or have some other good reason for needing an absentee ballot, you should be allowed to have one. But, if we want elections the outcomes of which people have confidence in, we simply have to return to our traditional system of the secret ballot, no use of drop boxes, and same day voting. Otherwise, our democracy is doomed.

[UPDATE 6/8/24 19:25 pm: This post was corrected, to further make clear that the concern is about influence on voters rather than fraud in the counting of votes or vote machine error; see the post above.]

Book Advances for the Justices in 2023

Gorsuch ($250,000), Kavanaugh ($340,000), Jackson ($893,750).

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One of my proposals for bilateral judicial reform would be to cap advances on book royalties for the Justices. I've written at length about the $1.2 million book advance for Justice Barrett in 2021 (here, here, and here). Now, the annual disclosures reveal the book deals for other Justices in 2023.

Yesterday, Axios reported that Justice Kavanaugh is writing a memoir. This was a well-timed scoop, given that today, Kavanaugh disclosed that his advance is $340,000. About a third of what ACB earned. Yikes. But still more than the other Trump nominee. Justice Gorsuch received an advance of $250,000 for his latest book with Janie Nitze, Over Ruled.

Justice Jackson, whose book deal was announced a few months ago, disclosed an advance of $893,750. I don't know if this is the full amount, or part of the advance. In any event, still a drop from Barrett peak in 2021. Maybe the market dried up for books about Justices?

For what it's worth, Justice Jackson received free tickets from Beyonce, but Justice Kavanaugh had to pay for his own Taylor Swift tickets.

Each year, Gorsuch receives a few hundred dollars in royalties from Princeton University Press for his 2006 book on assisted suicide and euthanasia. But as best as I can tell, Gorsuch has not received any royalties from his first book, A Republic, beyond the $250,000 advance. It's possible that all future royalties are assigned to his co-authors. Or, I think it is more likely that he hasn't earned back the $250,000 advance from 2021. In any event, Harper Collins has given Justice Gorsuch another $250,000 advance, which he may not earn back. People and groups are unlikely to buy his old book when the new book is on the market.

As I wrote in Bilateral Judicial Reform, I am skeptical any of these Justices will earn back these prodigious advances. These are interest free loans that are perfectly valid under the rules.

There are many headlines about Justice Thomas receiving valuable gifts. The insinuation is that he is profiting off his position. Much the same can be said about a Justice who writes a book. These are not normal business decisions. The Justices will only be able to make back these advances if they hold many events, where groups will feel at least some pressure to buy the books. And there are all sorts of conflicts there. I think the publishers are unlikely to ever get back the advance, but see some prestige by having a Justice on their label, which helps with other aspects of business.

Politics

Short Circuit: A Roundup of Recent Federal Court Decisions

Frothy fonts, unprofessional death threats, and books about butts and farts.

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Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.

New on the Bound By Oath podcast: the story of Berman v. Parker. In which the Supreme Court, in 1954, abandoned previous constitutional limits on the gov't's power to take property from Person A to give it to Person B, greenlighting the era of urban renewal. Which was a bad era.

New at Fox News: Ever since Berman, cities have been able to take "blighted" neighborhoods, bulldoze them, and give them to private developers. But Brentwood, Mo. officials are threatening to take property that is not remotely blighted. Does "blighted" mean blighted, or does it instead mean "coveted by the gov't"?

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Free Speech

Fifth Circuit Blocks Order Requiring Defendants' Lawyers "to Attend 'Religious-Liberty Training' as a Sanction"

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From today's decision in Carter v. Southwest Airlines, Inc. (consolidated with Carter v. Local 556, Transport Workers Union of Am.), decided today by Judge Edith Brown Clement, Kurt Engelhardt, and Cory Wilson (for my earlier post on the case, see here):

On August 7, 2023, the district court held Southwest Airlines in contempt for failing to comply with a Title VII judgment and ordered company lawyers to attend "religious-liberty training" as a sanction…. [W]e GRANT Southwest's motion for a stay pending appeal because the order likely exceeded the district court's civil contempt authority….

A jury found that Southwest Airlines violated Title VII and the Railway Labor Act by firing flight attendant Charlene Carter because of her religion; specifically, for publicly posting and privately messaging to another Southwest flight attendant images of aborted fetuses in furtherance of her religious beliefs. As part of its judgment, the district court ordered Southwest to, among other things, post the verdict and judgment on company bulletin boards and to email the same to all flight attendants, informing them of their Title VII and RLA rights (the "notice requirement").

{The district court also enjoined Southwest "from discriminating against Southwest flight attendants for their religious practices and beliefs, including—but not limited to—those expressed on social media and those concerning abortion" and "from failing to reasonably accommodate Southwest flight attendants' sincerely held religious beliefs, practices, and observances."}

To comply with the judgment, Southwest reinstated Carter, posted the verdict and judgment in all flight-attendant breakrooms, and emailed all flight attendants the verdict and judgment. The email stated that "a federal court in Dallas entered a judgment against Southwest" and "ordered us to inform you that Southwest does not discriminate against our Employees for their religious practices and beliefs." Southwest also published an internal memo stating that Southwest believed Carter's messages were "inappropriate, harassing, and offensive," "extremely graphic," and "in violation of several Company policies." The memo further stated that, although Southwest would implement the judgment, Southwest was "extremely disappointed with the court's ruling and [was] appealing the decision to the Fifth Circuit Court of Appeals."

Carter moved the district court to hold Southwest in contempt, arguing that these communications—the email and memo—violated the judgment. Carter contended that the email violated the judgment because it said that Southwest "does not discriminate" rather than "may not discriminate," which was the language the court's order required. As for the memo, Carter claimed that it demonstrated that Southwest could continue to discriminate against flight attendants' religious beliefs and practices. The district court agreed that Southwest had violated the notice requirement and therefore held Southwest in contempt. As contempt sanctions, the district court directed Southwest to circulate a statement—verbatim—to its flight attendants "to set the record straight" and ordered three of Southwest's in-house lawyers to attend religious-liberty training with the Alliance Defending Freedom {"a nonprofit, public-interest legal organization that provides litigation services, funding, and training to protect First Amendment freedoms and other fundamental rights"}.

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Libertarianism

David Boaz, RIP

One of libertarianism's greatest and most principled advocates passed away today.

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David Boaz. (Cato Institute)

 

David Boaz passed away today. Liberty has lost one of its greatest and most principled advocates. As the Cato Institute's longtime vice president for public policy and executive vice president for over forty years, he - more than any other single person - built Cato into the world's leading libertarian think tank. His 2015 book The Libertarian Mind is one of the best and most accessible introductions to libertarian ideas. In an edited volume, The Libertarian Reader, David compiled a wide range of classic libertarian writings by leading thinkers.

Central to David's thought was the idea that libertarianism requires both a broad conception of the range of liberties that must be protected, and a broad view of the range of people entitled to that full protection. Thus, he advocated radically cutting back on government policies that violated economic liberty, such as taxation and welfare state spending. But he was equally concerned about those that threatened liberty of other kinds, such as immigration restrictions and the War on Drugs. And he repeatedly emphasized that the full range of liberties must be available to everyone - whether they be black or white, gay or straight, men or women, immigrants or natives.

Thus, in a 2010 article, he cautioned libertarians against nostalgia for an imagined past, where liberty was supposedly greater. While some types of government intervention were less prevalent in the 18th and 19th centuries, it was - he noted - also an era of slavery, segregation, and other forms of oppression that have since been at least in large part overcome.

David also repeatedly reminded libertarians that we must be concerned about dangers to liberty from both right and left.  Unlike some, he did not minimize or ignore the threat of right-wing authoritarian ethno-nationalism exemplified by the rise of Trump in the US, and similar movements in Europe. In his contribution to National Review's 2016 "Against Trump" symposium, David wrote that "From a libertarian point of view…. Trump's greatest offenses against American tradition and our founding principles are his nativism and his promise of one-man rule." He was right then, and remains right today.

I knew David for over thirty years, since I was an intern at Cato in 1992, during the summer after my freshman year in college. A small incident from that time illustrates David's simultaneous commitment to high standards and intellectual outreach.

In those days, Cato was housed in a small building, which included a storage room filled with books published by the Institute. I liked to go there and browse - it was more fun than the work I was assigned to do! Early one morning, David happened by the storage room, and saw me reading a book there.

"Mr. Somin," he asked, "did your paycheck come on time this week?"

"Yes, sir," I answered.

"Then, why," David inquired, "are you late to work?"

Whether they were a vice president or an intern, everyone at Cato had a job they should be focused on. David had little tolerance for slackers.

Duly chastened, I moved to get back to work. But David also made sure to point out that Cato interns were entitled to free copies of Institute publications. If I wanted to read that book (or any other Cato book), he said, I should simply take it home with me - and read it on my own time. He never forgot that developing and spreading ideas was the main focus of a think tank's mission.  And that is how I got copies of David's excellent edited volumes, Liberating Schools, and The Crisis in Drug Prohibition.

That same commitment to ideas and outreach made David a great promoter of libertarian thought to a wide range of audiences. He had the rare skill of always maintaining civility, while also never pulling his punches.

In later years, I became a Cato adjunct scholar, and - eventually - the Institute's Simon Chair in Constitutional Studies (in addition to my primary employment as a law professor at George Mason University). Over that time - thanks to David's support - Cato co-published two of my books, and I did various other projects with the Institute, as well. Thus, I often had the opportunity to work with David and learn from him. I could not help but admire both his unfailingly high standards, and his commitment to principle. Cato and other libertarian institutions should strive to continue his legacy.

In closing, I would like to extend my condolences to David's family, friends, and colleagues.

The Cato Institute has posted a summary of David's career, and tributes by many Cato scholars, here.

A Kerfuffle at the Columbia Law Review

Misbehaving editors intent on publishing ideologically driven claptrap provoke a controversy.

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I have an op-ed in the Washington Free Beacon about an ongoing controversy involving the Columbia Law Review. It begins:

Law reviews are typically sleepy, student-edited journals that publish turgid scholarship. The articles may be read by specialists, and they are often read by no one beyond the author and editors. But Columbia University law school's law review has received a rare burst of public attention this week.

According to various media outlets, the law review's board of directors, composed of faculty and alumni, tried to censor an article critical of Israel. Except that's not what happened at all. The true story involves a faction of the law review secretly breaking all procedural rules and customs to publish a piece of ideologically driven claptrap.

I explain the relevant chain of events in detail at the Beacon link.

Three Bad Ideas about Race in America

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My forthcoming article, Three Bad Ideas about Race in America, has been posted on SSRN.

Here is the abstract:

In this Essay, prepared for a symposium honoring Brown v. Board of Education's seventieth anniversary, I examine and critique three influential propositions regarding race promoted by some academic theorists and pundits.

Part I discusses and rejects the notion that differences in socioeconomic status among different American subgroups are best explained by the power relationships groups have with the dominant white majority.

Part II considers the claim that racial categories define collective actors who inevitably have common interests and outlooks. This Part concludes that this idea is flawed and perhaps incoherent.

Part III addresses the proposition that white Americans should be encouraged to cultivate a "white racial consciousness" so that whites will recognize their privilege and become "antiracists." Part III concludes that such encouragement is both wrongheaded and dangerous.

Those who promote the ideas discussed and critiqued in this essay share several premises: pessimism about the US overcoming its racist history; what I consider a naïve belief in an identitarianism shaped by antiracist ideology as the best way to mitigate racism; and a concomitant belief that preserving the salience of existing socially (and legally) constructed racial categories is both inevitable and mostly desirable.

These premises, in turn, are ultimately based on a skepticism of or hostility to the ability of liberalism to overcome racism. In other words, they represent a rejection of the optimistic racial liberalism prevalent among civil rights activists when Brown was decided.

And here is an excerpt:

One explanation provided for the success of some nonwhite minority groups is that these groups became "white adjacent," or "honorary whites" via social evolution. This permits them to succeed in a white supremacist society. This theory lacks explanatory power. For example, it cannot explain why Chinese Americans but not Cambodian Americans are "white adjacent," unless white-adjacentness is a tautology—the more successful members of a minority group are, the more the group is "white adjacent."

Sociologist Eduardo Bonilla-Silva argues that skin color rather than race itself explains these differences. Thus, within the Asian American group, Chinese, Filipinos, Korean, and Japanese, whom he says have relatively fair complexions, qualify as honorary whites. Darker-complexioned Southeast Asians, such as, Vietnamese, Cambodians, and Laotians, however, are relegated to being part of the "collective black," and thus are doomed to lower socioeconomic status.

Granting arguendo that the color line Bonilla-Silva draws makes sense, there are still empirical gaps his theory cannot explain. For example, why were Filipino Americans among the poorest ethnic groups in the US in the late 1960s, but now have higher average incomes than Japanese or Chinese Americans, who in turn are wealthier on average than are white Americans? What do we make of Asian Indian Americans, who often have dark complexions yet have the highest income of any national-origin group? If their Caucasian physiognomy gives them an advantage, why don't other South Asian Americans, such as Pakistani, Bangladeshis, and Nepalese, have the same advantage? Why are Appalachian whites, despite being of white Protestant origin and resident in the US for centuries, at the bottom of the socioeconomic indicators pile? Why are Ethiopian and Somali Americans, whose physiognomy is relatively close to Europeans, less economically successful than are Nigerian Americans, who have a more distinctively African appearance?

Federalism

The Collective-Action Constitution in an Era of Polarization and Animosity: An Elegy?

Fifth in a series of guest-blogging posts.

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Oxford University Press.

The study conducted by The Collective-Action Constitution offers several lessons. First, when states disagree about the existence or severity of collective-action problems, such problems do not simply exist or not in a technical, scientific way. Cost-benefit collective-action problems have an objective structure, but their existence and significance require assessing the extent to which states are externalizing costs that are greater than the benefits they are internalizing, and such assessments may require normative judgments in addition to factfinding.

Second, the assessor that matters most is either the Constitution itself or the governmental institution with the most democratic legitimacy to make such judgment calls. This institution is Congress—the first branch of government—where all states and all Americans are represented, in contrast to individual state governments, where only one state and some Americans are represented. In McCulloch v. Maryland (1819), Chief Justice Marshall explained this key difference between the democratic legitimacy of the states and the people collectively in Congress and the democratic legitimacy of states individually outside it. Congress is also more broadly representative of all states and all people than is the presidency, which does not include both political parties at a given time, or balance interests to anywhere near the same extent that Congress does.

Third, if it is acting within its enumerated powers, Congress need only comply with the voting rules set forth in the Constitution; Congress need not first establish that all or most states agree that a collective-action problem exists and is sufficiently serious to warrant federal regulation. In other words, Congress need not poll states apart from establishing sufficient support in the federal legislative process. Because states are represented in Congress—because congressional majorities represent (albeit imperfectly) the constitutionally relevant views of the states collectively—proceeding otherwise would overrepresent the states, effectively letting them vote twice. One main reason that the Constitution is too difficult to amend, Chapter 10 argues, is that Article V essentially lets states vote twice.

Fourth, Congress's central role in deciding whether and how to solve collective-action problems for the states connects constitutional provisions, principles, and ideas that may otherwise seem to have little to do with one another. These include, for example, the Interstate Compacts Clause (see Chapter 3), the Interstate Commerce Clause (Chapter 5), the congressional approval exception to the dormant commerce principle (Chapter 5), Article III's opening clause, which lets Congress decide whether to create lower federal courts (Chapter 7), Article IV's provisions expressly or implicitly authorizing Congress to legislate (Chapter 8), and democratic-process rights and theory (Chapter 9).

Congress's paramount role in the constitutional scheme raises questions (explored in Part III of the book) about the operation of the Constitution's system of separated and  interrelated powers in contemporary times. It is one thing  to argue that the Constitution was originally intended, and designed, to render the federal government operating through (super)majority rule more likely to solve multistate collective-action problems than the states operating through unanimity rule. It is another thing to show that this is generally true in practice. As George Washington implied in his letter accompanying submission of the U.S. Constitution to the Confederation Congress that begins The Collective-Action Constitution, to protect state autonomy and individual liberty, the Framers created a bicameral legislature and a separation-of-powers system, both of which make it more difficult to legislate than in a unicameral legislature and a parliamentary system. But the Framers did not imagine that the availability of veto threats would come to dominate the policymaking process in situations having nothing to do with perceived encroachments on the presidency or bills that the president thinks unconstitutional. Nor were the Framers responsible for modern subconstitutional "veto gates" in Congress, especially the Senate filibuster, which makes it even harder to legislate. Finally, the Framers did not foresee the polarized, antagonistic nature of contemporary American politics.

These developments have meant that bicameralism and the separation (and interrelation) of powers often do not merely qualify Congress's ability to legislate. The horizontal structure and contemporary politics likely make it too hard for Congress to do so, particularly given the magnitude and geographic scope of the problems facing the nation and the extent to which Americans look mainly to the federal government, not the states, to solve them. The Constitution's greatest defect in modern times is probably that Congress often cannot execute its legislative responsibilities in the constitutional scheme. A result has been power shifts from Congress to the executive branch, the federal courts, and the states. The main workaround for congressional gridlock has been more frequent unilateral action by the executive. Other partial and potentially worrisome workarounds include efforts by federal courts to "update" the meaning of federal statutes and greater exercises of state regulatory authority. Sufficient solutions to the problem of gridlock may not exist any time soon given the practical impossibility of amending the Constitution, the unlikelihood that veto practice will become more restrained, and the long periods required for political realignments to occur. Ending the legislative filibuster in the Senate by majority vote would, however, have the likely salutary (but not cost-free) consequence of changing the typical voting threshold in this chamber from a three-fifths supermajority to majority rule.

Given the difficulty of legislating in the current era, it might be thought that The Collective-Action Constitution offers an elegy—an account of how the U.S. constitutional system was supposed to function or used to function but functions no longer. To readers who regard the book as an elegy during an era of presidential administration, judicial supremacy, and assertive state legislation, I offer the words of Richard Hooker, who long ago deemed his own book an elegy and justified writing it anyway: "Though for no other cause, yet for this; that posterity may know we have not loosely through silence permitted things to pass away as in a dream." (My learned colleague, H. Jefferson Powell, furnished this quote.)

In truth, however, The Collective-Action Constitution does not offer an elegy.  The constitutional structure still has much to commend it relative to relying on the states to act collectively outside Congress. When problems are national or international in scope, the relevant comparison is not between Congress's ability to combat a problem and one state's ability to do so, but between the ability of the political branches to act and the ability of the states to act collectively through unanimous agreement. Collective-action problems would almost certainly be more severe if the federal government were dissolved and states had to unanimously agree to protect the environment; regulate interstate and foreign commerce; build interstate infrastructure; conclude international agreements; contribute revenue to a common treasury and troops to a common military (or coordinate separate militaries); disburse funds held in common; respond to economic downturns; provide a minimum safety net; and handle pandemics, among many other problems. Congress still legislates today, and it does so much more frequently than most (let alone all) states form interstate compacts.

As for the executive branch, Presidents lack the ability to legislate in a formal and legitimate fashion, and so they cannot address the above problems and those with a similar structure to anywhere near the same extent that Congress can. Presidential action is less enduring and far reaching than legislation. Normatively, moreover, executive unilateralism poses risks of democratic deficits and backsliding that congressional power does not.

The federal judiciary's most important job is largely (although not entirely) to get out of the way. The Collective-Action Constitution cautions the U.S. Supreme Court and lower federal courts—both of which can be substantially more assertive than the Founders envisioned in reviewing the constitutionality of federal laws (see Chapter 7)—not to significantly restrict federal power in the years ahead, whether through constitutional-law holdings contracting congressional power or administrative-law decisions diminishing agency power. The nation will continue to face pressing problems that spill across state (or national) borders, so federal action will be needed to address them effectively. In general, the federal government has the authority to act. And given the horizontal structure and the era of partisan polarization and animosity in which Americans will continue to live, there are already major impediments to the ability and willingness of members of Congress to overcome their own collective-action problems and legislate. Especially in modern times, legal doctrine should facilitate, not impede, realization of the Constitution's main structural purpose—its commitment to collective action.

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