Author: Gerard Magliocca


Nebraska and the Electoral College

The New York Times ran a story on Sunday that Nebraska is considering a change to the state’s method of allocating electoral votes.  Nebraska and Maine are the only two states that do not automatically award all of their electoral votes to the popular vote winner in the state.  Nebraska awards two votes to the state winner, and the rest based on who carries each congressional district.  While the state almost always votes for Republicans (LBJ was the last Democrat to win Nebraska), in 2008 President Obama won one electoral vote there by carrying one congressional district.  Now some Nebraska Republicans want to snuff out that option.

Speaking as an Admiral in the Nebraska Navy (seriously, I can show you my certificate), I hope Nebraska does not make this change for partisan reasons.  I’ve talked in other posts and in a draft article about the fact that there is a strong norm against partisan gamesmanship with respect to how states choose electoral votes.  Even though this proposed change would affect only one electoral vote, the principle still applies that one party should not unilaterally change the rules for its benefit.

I can think of two possible counterarguments.  One is that there is a difference between shifting to the rule that almost every other state has (winner-take-all) and going away from that rule.  Maybe, but I’m not convinced.  A stronger reply is that Nebraska has functioned as a winner-take-all state for decades.  As far as I know, the state had never split its electoral votes until 2008.  Perhaps many Nebraska voters did not realize they had the system they had and don’t like it now that they do know.


Mandatory Vaccinations

Given the recent controversy over vaccinations for children, I plan to do a couple of posts over the next week about Jacobson v. Massachusetts, the 1905 Supreme Court decision that upheld compulsory vaccination for smallpox.  Jacobson is probably best known as the case that Justice Holmes cited in his Lochner dissent for the proposition that there was no constitutional liberty of contract.  Nevertheless, Justice Harlan’s opinion in Jacobson (for a seven-to-two majority) is interesting in its own right.  Stay tuned.


Harper Lee’s Alleged Sequel to “To Kill a Mockingbird”

To_Kill_a_Mockingbird_(1962)_trailer_2I realize that this is not exactly a legal post, but the story that the publisher released today about the “discovery” of a lost sequel to “To Kill a Mockingbird” strikes me as rather fishy.

The claim, in a statement attributed to Harper Lee, goes something like this.  In the 1950s, Lee wrote a novel set in the present about Scout, Atticus Finch, and many of her other famous characters.  She then set that aside and wrote what amounted to a prequel set in the 1930s–“To Kill a Mockingbird.”  Sixty years later, the original novel was found by somebody after everyone, including Lee, though that the manuscript was lost.

I find this all rather hard to believe.  First of all, Lee is nearly 90 years old, suffered a stroke in 2007, and lives in a nursing home.  Thus, I wonder to what extent any statement can be attributed to her.  Second, it’s an interesting coincidence that this novel was “found” not long after Lee’s sister, an attorney who acted as her advisor for decades, passed away.  Third, exactly where was this manuscript found?  In somebody’s attic?  In the same place where the “The Hitler Diaries” came from?

A fortune stands to be made from a sequel to one the most beloved books of all time.  Before it is published, I think someone should make sure that this is a genuine manuscript and that Lee is competent to make a decision to publish.  For all I know, this novel is something that she’s had all along and did not want to publish, but now that she cannot speak for herself another party (an attorney, an agent, etc.) wants to take unfair advantage of her fame.


The Judiciary Dinner

Here is a curious fact that I thought I’d discuss briefly on Super Bowl Sunday.  For decades, one of the biggest events on Washington’s social calendar was the Judiciary Dinner, which was held at the White House for the Supreme Court Justices.  One of the most dramatic of these dinners occurred in January 1937 by Franklin D. Roosevelt right before he would announce his Court-packing plan.  (By all accounts, FDR enjoyed himself immensely.)

At some point this tradition ended, though I don’t know exactly when.  In general, social contacts between the Justices and the White House have declined sharply over the past fifty years.  This is still the custom that a new President pays a social call on the Supreme Court (President Obama did this in 2009), but that’s about all of the interaction that there is.


Originalism and Same-Sex Marriage

A while back I wrote some posts stating that one day we would see originalist justifications for the inevitable Supreme Court decision holding that same-sex marriage cannot be prohibited by a state.  Turns out those justifications have already begun to appear, as there a lively discussion on Volokh ongoing about the issue.

“Originalism” is now the legal equivalent of “organic produce.”  We know that it’s better than non-originalism and non-organic, but we have no idea what the difference between them is.


Andrew Sullivan

I wanted to note Andrew Sullivan’s retirement from blogging, which he announced yesterday.  I am a blogger because my CoOp colleagues gave me a chance in 2009.  I wanted to become a blogger because of Andrew Sullivan.  As a loyal reader for years and a Dish subscriber, I thank him and wish him well in whatever he does next.  Sometimes I feel burned out as a part-time blogger for six years.  He’s been doing it full-time for fifteen years, so its totally understandable that he would want to step away.


LBJ Discusses the Supreme Court

80px-Lbj2I’ve posted before about Lyndon Johnson’s blunt tactics with respect to the Supreme Court (talking Justice Arthur Goldberg into leaving to become UN Ambassador, making Ramsey Clark AG to get Tom Clark off the Court, etc.)  In 1968, Chief Justice Warren attempted to retire, and I’ve recently come across the tapes on which LBJ discussed the vacancy and the subsequent unsuccessful nomination of Justice Fortas as his successor.  (LBJ, like Richard Nixon, also had White House tapes.)  If you’re interested, here is the link.  You get to hear LBJ . . . well . . . being LBJ.



Netanyahu’s Address to a Joint Session is Not Unconstitutional

There have been some thoughtful posts recently (by Michael Ramsey and David Bernstein) arguing that PM Netanyahu’s upcoming speech to a Joint Session of Congress without presidential approval violates the Executive Branch’s exclusive prerogative “to receive ambassadors” and conduct foreign policy.  I respectfully dissent.

Prime Minister Netanyahu cannot enter the United States unless the State Department gives him a visa.  Thus, the President has the means of preventing this speech.  If he does not, then I submit that he is giving a constitutionally adequate sanction.  A more difficult case would arise if Congress issues the invitation after the foreign leader is here or if it invited a foreign ambassador who is based here.  In that case, I think the standard would be whether Congress is considering legislation related to the speech.  Here a new bill imposing sanctions on Iran is under active consideration, and if Congress wants to hear from Netanyahu or anybody else with something useful to say about that, I think that they can.  This is true even if the real purpose of inviting the leader or ambassador is to embarrass the President.

Now is this invitation is a good idea?  Ask a foreign policy expert.



A Word Missing From the Constitution

The answer is “Governor.”  The Constitution never refers to the Governor of a State.  The phrases used instead are “executive authority” or “executive officer.”  I’m not sure why.  One possible answer is that at least one state in 1787 did not have a Governor, but instead relied on some form of collective executive.  (I still need to research that.)

This textual point sheds some light on the Supreme Court’s upcoming examination of what the word “Legislature” means in the Arizona redistricting case.  The Constitution does refer specifically to the Legislature (rather than to “the Legislature authority”) in many places, which suggests that the Legislature itself must play a significant role in the tasks that are delegated to it by the text.  The Arizona Constitution does not do that with respect to redistricting, which is why I’m sticking with my view (after initially concluding otherwise) that the constitutional challenge by the State Legislature should succeed.

UPDATE:  Vik Amar has a new column arguing that an Act of Congress authorizes what the Arizona Constitution does.  It’s an interesting take that might lead me to change my mind again.  After all, Article 1, Section 4 gives Congress given broad authority over districting if it chooses to exercise that power.