The Volokh Conspiracy

The word comes from "mastodont," which the Oxford English Dictionary tells us comes from

French mastodonte (Cuvier 1806, in Ann. du muséum d'hist. nat. de Paris8 270) < masto-masto- comb. form² + -odonte-odont comb. form, with reference to the nipple-like tubercles present in pairs on the crowns of the molar teeth.

Perhaps those nipple-like objects came from Amazons,

< Latin Amazon, < Greek Ἀμαζών, -όνα; explained by the Greeks < ἀ priv. + μαζ-ός a breast (in connection with the fable that they destroyed the right breast so as not to interfere with the use of the bow), but probably pop. etym. of an unknown foreign word.

And of course they don't call it Go Ogle for nothing.

As the National Lawyers Convention kicks off, Politico Magazine published a profile about the Federalist Society. It focuses on a question that has occupied my mind for some time: what is the future for the Society?

When the Federalist Society gathers on Thursday at the Mayflower Hotel for its first national lawyers convention since the Supreme Court's historic 2021-22 term, one word is likely to stir up a surprising amount of debate, reaction and perhaps even pain.

The word is Dobbs.

After all, skepticism about the right to abortion was part of the impetus for the founding of the society, back in 1982. Popular outrage on the right over Roe v. Wade was what gave the upstart group founded by law students the sustained political support that propelled it to national prominence, connecting high-minded legal theorists to religious voters who had never heard the term originalism. And within the society's ranks, a belief that Roe was wrongly decided was the glue that held two of the group's major factions together: It provided common ground between conservative activists hungering to see their views enshrined in law and people who believed simply that unelected judges should leave major decisions to politicians.

Now, though, the Dobbs decision and the newfound legal power that delivered that victory are exposing those internal divisions and testing the group's commitment to its founding principles.

The article quotes me in a few spots, where I muse on the topic:

The first clue that the defeat of Roe, while a universally hoped-for goal, might also prove a mixed blessing for the conservative legal movement came at the 2021 Federalist Society convention.

One of the society's most prolific members, South Texas College of Law professor Josh Blackman, noticed that of the dozens of panel discussions — on topics including cancel culture and "social activism and corporate leadership" — none addressed the elephant in the room: the pending challenge to abortion rights, and how that could reshape both society and the conservative legal movement.

"You get your white whale and what do you do? What's the next thing?" said Blackman in an interview a few weeks ago while on his way to Federalist Society talks at three Boston-area law schools. "The answer is: I don't know."

I will keep my eyes and ears open throughout the convention to see how this question shakes out.

Well, you can't say that my new book, Classified: The Untold Story of Racial Classification in America, was not well-timed. Last week, the Supreme Court took up the issue of affirmative action in admissions, and directly addressed the question raised in my book as to whether the classifications are too incoherent to be a justified basis for an asserted compelling interest in diversity.

Yesterday, the Supreme Court held oral arguments in Brackeen v. Haaland on another issue discussed in my book, the question of "Indian" identity under federal law. The case involves a challenge to the constitutionality of the Indian Child Welfare Act. The plaintiffs argue that the Act is unconstitutional because it illegally commandeers state courts to enforce federal law, and because it imposes a racial classification that violates the equal protection component of the Fifth Amendment's Due Process clause.

My view is that the law is unconstitutional at least for the latter reason, as I explain below. I reviewed the transcript of the oral arguments from yesterday, and I think the plaintiffs' attorneys failed to get across one key point as to why the case is distinguishable from the leading precedent of Morton v. Mancari. In the latter case, the Court held that tribal membership is a political, not a racial, classification. This allowed the allowing individuals to assert tribal membership to gain a preference in employment with the Bureau of Inidan Affairs.

ICWA is intended to protect Indian families from having their children unjustly taken away from them by non-Indian courts. However, under ICWA, by contrast, the federal government can impose Indian identity on a child against the parents' wishes, even when the child is not a member of the tribe. And it can do for the benefit not of the child, but of either the tribe or even Native American demographics writ large. Surely there is a distinction between allowing a liberal definition of "Indian" to provide an employment benefit and imposing an even more liberal definition of "Indian child" to the child's detriment on a child who may have no cultural or other connection to any Indian tribe beyond that one parent is a member and the child is eligible for membership. Anyway, here is my analysis:

There are several things that distinguish ICWA from the situation in Mancari.

First, in Mancari and like-minded cases, the government was providing a benefit to an individual if he or she was a tribal member.

ICWA, by contrast, often requires special measures for tribal members that are to their disadvantage, but that are seen to be advantageous to their tribe or to the Indian community in general. For example, for non-Indian families, parental rights can be terminated for sufficiently abusive behavior proven by "clear and convincing" evidence. Indian children, by contrast, cannot be removed from their parents unless the government can prove "beyond a reasonable doubt," based on expert witness testimony, that the child is in critical danger. This may be beneficial to the Indian community at large by keeping more children connected to their Indian culture, but it's dangerous for the child.

Second, while Mancari involved an individual who chose to assert Indian status, under ICWA Indian status, and the legal ramifications of that status, are imposed on a child and the child's family. Even parents who are willing to relinquish their tribal membership cannot escape ICWA's jurisdiction over their children. In a 2016 case, the Oklahoma Supreme Court held that the Cherokee Nation's interest in moving a child from a non-Indian foster home to an ICWA-compliant one outweighed both birth parents' wishes. This was so even though one birth parent was not an Indian, and the Indian birth parent had filed paperwork to unenroll from the tribe. ICWA was intended to help Indian parents who did not want their children adopted outside their tribe. In practice, however, ICWA allows tribes to intervene in custody proceedings against the parents' explicit wishes, even when one parent is not Indian and the other does not wish to be considered one.

Third, and relatedly, ICWA requires courts, with limited exceptions, to override the normal best interests of the child standard in custody matters in favor of a blanket presumption that it is in the best interest of the Indian child to be placed with Indian adults. Again, it's one thing to allow someone to claim a benefit based on Indian tribal membership, it's another thing to impose a harm on a child because the government wants to help the Indian nations retain their members.

While placement with Indian adults can be overriden for "good cause," in practice there is still a different standard for children deemed Indian and other children. California and Texas courts have explicitly said that there are two different best interest standards: an individualized one for white, black, etc., kids, and an "Indian best interests" standard,

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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.