Analysis and Commentary on Government
Democracy and the Tribal Blame Machine

Cornell Law professor Joseph Margulies describes the tribal blame machine, which both sides use to demonize the “other” side and drive us apart. Professor Margulies argues that a mature democracy must reject the tribal blame machine and instead embrace a fair, sober, even-handed appraisal of the facts, free from hyperbole and pot-banging.

Social Security’s Good News is Good News

UF Levin College of Law professor and economist Neil H. Buchanan comments on the recent announcement that under one scenario, the depletion date of the Social Security trust funds is now one year later than previously predicted—now 2035. Professor Buchanan explains the significance of this announcement—that Franklin Delano Roosevelt’s visionary program will continue (for now) to protect all generations of Americans despite efforts of Republican autocrats to destroy it.

How and Why Justice Breyer (and Other Justices) Should Weigh in on the Independent-State-Legislature Notion Before Breyer Retires

Illinois Law dean Vikram David Amar argues that the U.S. Supreme Court should put the so-called Independent State Legislature (ISL) theory to rest sooner rather than later. Specifically, Dean Amar suggests that Justice Stephen Breyer—who is set to retire but who joined Justices John Paul Stevens, Ruth Bader Ginsburg and David Souter in expressly rejecting ISL in 2000—should be among the voices to condemn the unsupportable theory.

Is ‘The Handmaid’s Tale’ a Pre-Documentary? What an Autocracy—Theocratic or Otherwise—Looks Like: Part Two in a Series

In this second of a two-part series of columns, UF Levin College of Law professor and economist Neil H. Buchanan explains why “The Handmaid’s Tale” is a pre-documentary—not in that it predicts what literally will happen in the United States, but in that it accurately describes America’s shift toward becoming a dystopia. Professor Buchanan points out that the mechanisms are already in place for an autocratic government to dispossess citizens of their property, and the rest can be changed at will.

New Homeland Security Report Reminds Us Of Trump and Putin’s Disinformation Alliance

Former federal prosecutor Dennis Aftergut comments on a report by the U.S. Department of Homeland Security’s Inspector General that in mid-2020, Trump administration officials in that department delayed and altered an intelligence study reporting on Russian interference in America’s 2020 presidential election. Mr. Aftergut describes three reasons the DHS inspector general’s report is important and calls on all Americans to ensure the next Congress has a majority of representatives committed to preserving our constitutional republic.

Lawyers’ Special Role in Preserving Democracy: More Important Today Than When First Described by a Great Chronicler of America

Former federal prosecutor Dennis Aftergut describes the special role that lawyers play in preserving democracy—a role even more important today than it was at the county’s founding. Mr. Aftergut calls lawyers to action particularly in light of the news of a forthcoming memoir by Geoffrey Berman, the former US Attorney for the Southern District of New York who resigned rather than carry out former President Trump’s efforts to bring weak cases against political opponents.

McCarthy Survives Having Told the Truth in an Upside Down House Republican Conference

Former federal prosecutor Dennis Aftergut comments on Wednesday’s GOP conference meeting in which House Minority Leader Kevin McCarthy attempted to distance himself from recorded comments he made immediately after the January 6 insurrection. Mr. Aftergut argues that the only way to keep our republic from falling apart is for journalists, public officials, and citizens to keep fighting for public truth.

Textualism Masks Ideological Opposition to the Administrative State

Cornell Law professor Michael C. Dorf comments on the recent decision by U.S. District Judge Kathryn Kimball Mizelle invalidating the federal mask mandate for travelers. Professor Dorf points out the flaws in Judge Mizelle’s reasoning and argues that her ruling reflects a right-wing ideology that is hostile to government agencies addressing even the most pressing social problems.

The Scope and Nature of the State Secrets Privilege

Cornell Law professor Michael C. Dorf comments on two cases the U.S. Supreme Court recently decided that involve the “state secrets privilege.” Professor Dorf argues that the cases demonstrate that the executive branch (regardless of whether the president is a Republican or a Democrat) will go as far as the courts allow with the public secrets privilege, so it falls to Congress to rein it in.

Bill Barr’s New Book: More Reputation Make-over Than Truth

Former federal prosecutor Dennis Aftergut opines that former Attorney General William Barr’s forthcoming memoir glosses over Barr’s substantial role in Donald Trump’s effort to undermine democracy. Mr. Aftergut argues that Barr damaged the Justice Department’s reputation for integrity, and no memoir can make up for that.

The Supreme Court’s Stealth Attack on Expertise Helps Pave the Way for Authoritarianism

Amherst professor Austin Sarat and former federal prosecutor Dennis Aftergut point out that in the U.S. Supreme Court’s recent decision in National Federation of Independent Businesses v. Department of Labor, the conservative majority continues the right-wing assault on knowledge and expertise. Professor Sarat and Mr. Aftergut argue that the conservative attack on regulatory agencies and the expertise they represent is a classic indicator of creeping totalitarianism—the blurring of the distinction between fact and fiction.

What the January 6 Committee Can Do to Persuade Independent Voters

Amherst professor Austin Sarat explains why it is so important that the hearings by the House Select Committee on the events of January 6, 2021, be and appear to be fair. Professor Sarat argues that an atmosphere of fairness and seriousness, similar to that of the Watergate hearings in 1973, is necessary not only to persuade independents about what happened behind the scenes on January 6, but also to turn the committee’s findings into a voting issue.

A Year After the Capitol Insurrection, the Threat is Coming from Inside the Building

In light of the approaching one-year anniversary of the January 6 Capitol Insurrection, Cornell law professor Michael C. Dorf argues that the next assault on American democracy could come from within the Capitol and other institutions of American democracy. Professor Dorf points out that the phrase “political violence” is an oxymoron in the context of a democracy; to practice democratic politics is to accept a common set of ground rules for resolving policy disputes peacefully, and when the loser of an election uses violence to try to change the result, democratic politics ceases functioning.

Statehood for D.C. Could Not Be Reversed

UF Levin College of Law professor Neil H. Buchanan explains why, if the District of Columbia was recognized as a state, that recognition cannot later be reversed. Professor Buchanan argues that to reverse statehood would signal a slippery slope wherein Republicans would be empowered to go well beyond suppressing votes in swing states to instead removing statehood from regions with Democratic voters.

Capitol Police Officer Reminds Americans That Saving Democracy Requires Courage

Amherst College professor Austin Sarat and former federal prosecutor Dennis Aftergut comment on an interview of Capitol Police Officer Michael Byrd regarding his role defending against the January 6 riot, and on Donald Trump’s response to Byrd. Professor Sarat and Mr. Aftergut argue that Byrd’s interview reminds us that the best way to deal with a bully who is himself a coward is to call his bluff.

Dead Democracy Walking

UF Levin College of Law professor Neil H. Buchanan describes the United States today as a “dead democracy walking”—walking with mortal wounds but not yet dead. While stating that he is open to the possibility of being proven wrong, Professor Buchanan explains why believes that Trump and Republicans have corrupted the American political system beyond repair, and he notes that his subsequent writings and analysis will proceed from the assumption that democracy will soon be dead in this country.

Coping with Constitutional Ignorance and Alienation

Austin Sarat—Associate Provost and Associate Dean of the Faculty and Professor of Jurisprudence & Political Science at Amherst College—explains why ignorance of the Constitution is more consequential now than ever before, particularly coupled with increasing numbers of Americans who are indifferent or hostile toward democratic norms. Professor Sarat calls upon our leaders to take care to explain why our constitutional democracy is worth fighting for and to take up that fight every day.

Evaluating the Republican Federal Court Challenge to Illinois’s Recently Adopted Redistricting Plan

In this first of a series of columns, Illinois Law dean Vikram David Amar and professor Jason Mazzone describe a lawsuit in which Republicans are challenging Illinois’s recently adopted redistricting plan. Dean Amar and Professor Mazzone identify several obstacles the lawsuit may face, which, in their estimation, make it unlikely to succeed.

There Are Many Different Ways to Lose Our Democracy

UF Levin College of Law professor Neil H. Buchanan describes the precarious situation of our democracy and notes that there are many necessary conditions for a constitutional republic to continue to operate, and because each is necessary, losing any of them would lead to the whole system crashing down. In this column, Professor Buchanan points out some of the many ways in which our nation could descend into autocracy.

Some Observations on Calls for Senate Reform: Part One of a Two-Part Series

In this first of a series of columns, Illinois Law dean and professor Vikram David Amar offers four observations about recent calls for reform of the filibuster device in the U.S. Senate. Dean Amar suggests looking at state experiences with supermajority rules, as well as the Senate’s own recent past, and he considers why senators might be reluctant to eliminate the filibuster. He concludes with a comment on President Joe Biden’s suggestion that the Senate return to the “talking filibuster” and praises a suggestion by Senator Tom Harkin (D-IA) that the cloture requirement (currently at 60 votes) could be lowered gradually, the longer a measure under consideration is debated.

Meet our Columnists
Vikram David Amar
Vikram David Amar

Vikram David Amar is the Dean and Iwan Foundation Professor of Law at the University of Illinois... more

Neil H. Buchanan
Neil H. Buchanan

Neil H. Buchanan, an economist and legal scholar, holds the James J. Freeland Eminent Scholar... more

John Dean
John Dean

John Dean served as Counsel to the President of the United States from July 1970 to April 1973.... more

Michael C. Dorf
Michael C. Dorf

Michael C. Dorf is the Robert S. Stevens Professor of Law at Cornell University Law School. He... more

Samuel Estreicher
Samuel Estreicher

Samuel Estreicher is the Dwight D. Opperman Professor, Director, Center for Labor and Employment... more

Leslie C. Griffin
Leslie C. Griffin

Dr. Leslie C. Griffin is the William S. Boyd Professor of Law at the University of Nevada, Las... more

Joanna L. Grossman
Joanna L. Grossman

Joanna L. Grossman is the Ellen K. Solender Endowed Chair in Women and Law at SMU Dedman School... more

Marci A. Hamilton
Marci A. Hamilton

Professor Marci A. Hamilton is a Professor of Practice in Political Science at the University of... more

Joseph Margulies
Joseph Margulies

Mr. Margulies is a Professor of Law and Government at Cornell University. He was Counsel of... more

Austin Sarat
Austin Sarat

Austin Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science at... more

Lesley Wexler
Lesley Wexler

Lesley Wexler is a Professor of Law at the University of Illinois College of Law. Immediately... more