À propos the Selzer poll:

I was at a wedding a while ago where I met a friendly conservative movement litigator my age. I asked him what motivated him. He started with “well I’m super conservative” and I said of course but what did that mean for him.

He got into it. (1/7) He emphasized family and religion. He recognized that what he was about to say might be unpopular in New York, but he wanted to live his life as a Christian without shame. And he felt that this was increasingly hard to do because of changes in law and society. (2/7)

The basic problem with the “Trump is a fascist” or “Trump is anti-democratic” line of argument is that is confuses analysis and politics. Many of my colleagues think their analysis is correct *and* that this analysis should be politically dispositive. But it’s not. (1/6) Why isn’t it? I’m not sure, but it’s not hard to think of reasons. In any case “why” is an academic question. The boring reality is that calling someone an authoritarian isn’t a substitute for mass politics. So if you want to beat Trump, that’s your question: politics. (2/6)

I know Twitter is for snark, but just to take this comment seriously: I teach ConLaw and Legislation and the Regulatory State. Both classes have seen several major precedents overturned in the last five years that affect core doctrines and even the structure of the law: (1/6)

https://twitter.com/randyebarnett/status/1810091907818930189

Like most ConLaw classes, mine taught abortion and affirmative action. Dobbs and SFFA have dramatically changed that area of law. I also teach separation of powers in ConLaw and LRS. That law has changed dramatically too, especially re the removal power (see Seila Law). (2/6)

I won't do a full thread on the fall of Chevron right now, but two things about the majority opinion that irk me:

First, it traffics in an imagined reality. Roberts says it is hard to imagine that anyone, including Congress, could treat Chevron (1/4) as a stable background rule. In fact, we know from empirical studies that Chevron was one of the few judicial conventions of statutory interpretation that Congressional staffers knew and relied on! (2/4)

I don’t know this guy and I’ve been told he’s an attorney, but for what it’s worth this is almost the textbook example I use when I’m teaching folks who *don’t* understand how the First Amendment actually works. (1/6) The First Amendment protects the right to free speech. But does that mean you can say whatever you want without facing criminal liability? Not at all!

Consider the following two scenarios:

(1) I walk to the store and buy and a crowbar. No crime! Life is good. 🤓 (2/6)

Gratified to share @ascoseriakatz and my latest article, now live in the @HarvLRev Forum: a response to Bamzai and Prakash’s most recent piece on the executive power of removal. (1/8)

harvardlawreview.org/forum/vol-136/… Our response has one major goal: to explain why we do not think Bamzai and Prakash’s article is convincing. The article’s argument fails to persuade on its own terms and its treatment of some of the historical evidence gave us pause. (2/8)

Three thoughts on what's going on in CT:

(1) As in New York, this is a story of organizers shifting the bounds of the normal. @NedLamont is hardly a right-wing reactionary! He's more conservative than I might like, sure, but CT has done some wonderful things under him. (1/7) I'm sure he didn't want or expect this! He probably thought: "Here's someone competent and impressive and I want them. Activists want someone further left but tough luck for them." And the CT legislature's rejection shows that the ground has shifted underneath him. (2/6)

Something weird is going on with the CJN. @therealjsolo writes a reporter article today that flags that not many new applications have been received and discusses several names that are not confirmed to have applied. (1/5) timesunion.com/state/article/… Then today the commission extends the deadline for applications — which was supposed to expire tomorrow — to March 10. So enough for someone to finish an application but not enough to do a real push for more candidates. (2/5)

Finally had a chance to read the meager papers filed by GOP in the lawsuit over whether LaSalle is entitled to a floor vote after being sick last week. The argument they’re making is almost laughable. (1/10) First, there is a bunch of procedural stuff that should immediately narrow or stop much of this suit. E.g. I don’t think Palumbo is a proper party to bring a challenge to whether the senate’s letter fulfills the requirements of the public officers law. (2/10)

Today, a truly remarkable document has been published by retired Justices -- a letter that purports to be in support of LaSalle but that inadvertently reveals some of the very problems that have led professors like me to call for reform. urldefense.proofpoint.com/v2/url?u=https… (1/10) As a threshold matter, the letter is striking: judges as politicians. It reminds me of an amicus brief I encountered when I was a law clerk signed by Lippman and other ex-COA judges explicitly trading on their prestige as judges while in fact acting as interested parties. (2/10)

With the @nytimes writing a news article about #NoOnLaSalle and some shady coalition paying for advertisements (!) on behalf of LaSalle, I am reminded of the major power imbalance in this fight. (1/5) The editorial and news teams at @nytimes have ignored our calls for coverage of New York courts for *years.* Now they wade in and interview several institutional pro-LaSalle figures and *none* opposed. I wonder who put them up to that piece? (2/5)

Lawmakers, academics, and advocates have already discussed why LaSalle is the wrong choice for New York on labor, repro rights, and criminal legal reform. I want to draw attention to another worrying aspect of his record: ethics and transparency (1/11). New York has a history of major ethical violations by prosecutors. Judges are responsible for disciplining prosecutors when they break the law. Unfortunately, LaSalle has used his power as PJ to uphold frightening levels of secrecy around widespread prosecutorial abuse. (2/11)

This touched on a really important point I emphasize in my Constitutional Law class. It’s not an accident that the 14th amendment is hard to reconcile with the original constitution. (1/5)

https://twitter.com/tarahtalk/status/1604541505883996166

The 14th amendment is part of what Eric Foner’s new book rightly calls The Second Founding. It is a rejection, rewriting, and renovation of the Constitution, and it is deeply indebted to radical and Black abolitionist thought. (2/5) wwnorton.com/books/97803933…

I can’t with the @nytimes headline this morning. California voters did not “send a message to the Democrats and the nation.” Rather, about 35K people more voted to recall Boudin than voted to retain him, in a recall process that all have acknowledged is structurally flawed. 1/4 I’m no expert on California politics but the idea that this is some kind of grand national communiqué is laughable. Even compared to the off-cycle 2019 election that brought Boudin in, there were fewer votes to recall him than were won by his opponent then. 2/4

The debate about protest at Supreme Court justices' homes and the recent death of the great legal historian John Phillip Reid (along with the scurrilous attacks on @joshchafetz) have me thinking again about Reid's great essay on the legality of the mob in US legal history. (1/6) Some people seem to think that forms of mass protest that make elites uncomfortable have no place in our democracy. This, of course, was the Tory position in the lead up to the Revolution. They lost. (2/6)