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The Complete Irrationality and Disastrous Effects of Life Tenure for Supreme Court Justices

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The world is on fire, and we have larger issues to be worried about than life tenure for Supreme Court justices. On the other hand, the world is on fire at least partly because of the 6-3 GOP super-majority that has enabled Trump in a myriad of terrible ways. So, behold the effects of life tenure.  We are approaching the tenth anniversary of Justice Scalia’s death on February 13, 2016. Despite there being almost a year left in President Obama’s term, Senator Mitch McConnell infamously refused to give Obama’s nominee a hearing. But, had Justice Scalia, who was in poor health at the time of his death, died just one year earlier, it is extremely unlikely that McConnell could have delayed the nomination for a full two years, and President Obama would have named Scalia’s successor. Justice Ruth Bader Ginsburg died on September 18, 2020. Had she passed away just four months later, President Biden would have been able to name her successor. Change the dates of the deaths of these two lega...
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A Sinking Court — and One Way To Right It

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This is in response to one of Steve Vladeck's “One First" essays from last month (“ Progressive Judicial Institutionalism ”), which was itself a response to an op-ed in The Guardian (“ It’s time to accept that the Supreme Court is illegitimate and must be replaced ”). I agree with Professor Vladeck that "tossing the baby" would be a mistake. That is, delegitimizing the institution such that it no longer has any authority to constrain the other branches, is a real risk that should be avoided. As Vladeck notes, the federal courts writ large (if not the Supreme Court itself) have been instrumental in constraining a hyperaggressive executive branch. We can and should distinguish between the Article III branch and the current composition of the Supreme Court when criticizing SCOTUS or proposing reforms. The question then is what can be done about a Supreme Court that many perceive to be out of step and unaccountable. There have been many suggestions—term limits, expansion...
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A Cloudy Transgender Athletes SCOTUS Argument With a Possible Silver Lining

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Even after roughly three and a half hours of oral argument in the two SCOTUS cases involving state bans on transgender females' participation in girls' and women's sports yesterday, much remains unclear. I counted at most four votes--the three Democratic appointees and possibly Justice Gorsuch--for the plaintiffs/respondents in the two cases. Thus, I agree with the headline of the NY Times story on the case: Justices Seem Inclined to Allow States to Bar Transgender Athletes . "Seem" and "inclined" are useful qualifiers, if not so much for the bottom line as to signify that there are a lot of moving pieces. Here I'll focus chiefly on the as-applied/facial distinction and then say a few words about two other subjects. Is an As-Applied Equal Protection Challenge Permissible? The lawyers for Idaho, West Virginia, and the U.S. as amicus all urged the Court to reject the challenges on what they portrayed as a clean and easy ground. I'll summarize their...
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Impeaching Noem, and the Interchangeable Awfulness in the Administration

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The killing of an American citizen in broad daylight by an ICE agent continues to dominate headlines, as it should.  One response to the outrage has been to call for the impeachment of DHS Secretary Kristi Noem.  Indeed, at the end of last week Robin Kelly, a Democratic Member of Congress from Illinois, announced that she would file three articles of impeachment against Noem, writing that Noem "has turned ICE into a rogue force, violating the Constitution, tearing families apart, and leaving death in her wake.  From Chicago to Minneapolis, her recklessness cost lives, including Renee Nicole Good. This isn't just dangerous—it's impeachable. I'm fighting back." Given the certainty that no (or at most a tiny handful of) Republicans in the House or Senate would even consider supporting Kelly's effort, is this purely performative?   Jan-Werner Müller  wrote persuasively in  The Guardian  that even a process that ultimately ends with no impeachment...
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RFK, Jr. WTF? -- Animal Edition

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Last week, I filled in for Jasmin Singer as the co-host (with Mariann Sullivan) of the Hen Report, one of the three weekly podcasts in the Our Henhouse family of podcasts--which feature news and more about animal rights and animal welfare. Mariann and I discussed the challenges and opportunities of making common cause on particular issues with strange bedfellows, i.e., people who hold views or work for causes with which one generally disagrees but who are allied on one or more other issues. You can watch the episode on YouTube or listen wherever you get your podcasts. The discussion was inspired by a number of recent news stories, including the announcement at the end of last year that Health and Human Services Secretary Robert F. Kennedy, Jr. is working to end federally funded animal testing. For those of us who care about animal rights and animal welfare, that's good news. The fact that it came from RFK Jr., however, is puzzling, given that he is a hunter who promotes the con...
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These Bullies are Crybabies (Unsurprisingly)

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Three months ago today, I began my  Dorf on Law column with this observation: "One of the laments that I have seen more and more in the Trump II era is some variation on this rhetorical question: 'How is  this  not the only thing that we are talking about?'"  I then argued that the militarized attack by ICE agents on a Chicago apartment building and its residents, which included the zip-tying of elderly citizens and children (with one witness saying that an agent said, " f*** them kids"), was the only thing that anyone should have been talking about. That incident remains one of the most shocking stories in a year filled with jaw-dropping evil, but I must sadly report that it is no longer the one thing that everyone should be talking about.  As everyone reading this column surely knows, the new occupant at the top of the list of malevolence is the cold-blooded murder of a young woman in Minneapolis, Renee Nicole Good, two days ago . Unfortunately, even th...
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Are Emerging Political Threats to Social Security Enough to Change Retirement Strategies?

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A friend of mine recently turned 62.  (A mere child.)  Because I have written so much about the Social Security system over the course of my career, my birthday message to him included this: "You’re now eligible for Social Security retirement benefits.  Grab ‘em before they disappear!!"  I was kidding, except that I was not at all kidding.  Indeed, I am fast approaching my full Social Security retirement age, and although I have not yet started to take my retirement benefits, I have recently begun to wonder seriously whether the chaos of the second Trump Administration might be reason enough to start claiming benefits sooner than would otherwise be warranted. Short answer: The political threats that emerged in the last year show no signs of abating, and everyone would be wise to think seriously about beginning to take benefits sooner rather than later.  Republicans have wavered over time between trying to partially privatize Social Security and accusing Dem...
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Trump Doesn't Merely Violate the Law. He Aims to Destroy it.

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In yet another example of how each of Donald Trump's outrageous acts distracts attention from the previous outrageous act, yesterday, which ought to have been the occasion for a solemn remembrance (or, in MAGA-world, celebration) of the fifth anniversary of the January 6, 2021 assault on the U.S. capitol, was mostly taken up with discussions of the fallout from Saturday's military intervention in Venezuela. I myself fell into the trap, devoting yesterday's blog post to the Trump administration's invocation of the Monroe Doctrine, rather than reflecting on the remarkable fact that the president who inspired mob violence in an effort to overturn a legitimate election was returned to power. Were I to devote a full essay to remembering the Insurrection, I might title it something snarky, like " Susan Collins was right. Trump learned his lesson ." One of my co-bloggers or I might write such a blog post in the future, but today I want to talk about the Insurrection...
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The Trumpian Version of the Monroe Doctrine is Simply Might Makes Right

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When President James Monroe articulated what came to be known as the Monroe Doctrine, the United States lacked the kind of naval power that would have been necessary to give it teeth. Thus, unsurprisingly, at no point during Monroe's presidency did the United States engage in substantial military action outside the territory of the United States. Perhaps more fundamentally, in the pre-Civil War era, the Monroe Doctrine was not intended or understood as a ground for the U.S. intervening in the domestic governance of foreign sovereigns in the Western hemisphere. Rather, it was a warning to European powers--especially Spain and France--that they ought not so intervene. Why not? Monroe and the U.S. had multiple concerns. There was some fear that a buildup of Spanish power could eventually threaten U.S. sovereign territory. There were also economic interests. Independent countries in the western hemisphere would trade more freely with the United States than would colonial holdings of Eu...
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Semiquincentennial Reflections on Original Sin and Inevitability

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[Note to readers: I am of course aware of the Trump administration's attack on Venezuela, capture of Maduro, and suggestions that further military operations could follow in order to occupy and "run" the country. DoL will include discussion of the legal and other issues raised thereby in short order. However, I wrote most of today's essay and accompanying Verdict column on Friday of last week, so it addresses different topics. I offer that as an explanation, not an apology. One of the unsettling aspects of our current reality is how one can barely focus on anything for more than a few hours because the president and his administration generate a new crisis and/or scandal at least daily. Think of today's essay as part of an effort to push back against this phenomenon.] ---------- During the last few weeks, I used my time off from teaching and blogging to work on a law-review-length paper, grade exams, visit with family, and do a bit more pleasure reading than more ...
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