Dorf on Law

Yes, today is Election Day 2024, in the United States of America.  That means that one part of the campaign for political power is about to end, while a completely unprincipled campaign is about to begin, as Republicans go about installing Donald Trump in the White House in defiance of any vote counts.  There is a very small possibility that we will have a clear outcome in the next day or two, if it turns out that Trump seems to have won under the current rules.  But if Kamala Harris is deemed the winner -- and certainly if there are genuine doubts that require recounts and litigation -- the election will not be over potentially for a very long time, possibly extending beyond January 6 or even January 20, 2025.   It is worth noting that when Al Franken won his first (and, it turned out, only full) term as a US Senator from Minnesota in an election that ended on November 4, 2008, his razor-thin victory was not finalized until June 30, 2009, meaning that it took almost eight full months

An article in yesterday's NY Times , "In Shift From 2020, Identity Politics Loses its Grip on the Country,"  describes various ways in which the overall political zeitgeist has shifted since 2020. I don't quarrel with all of the specific vignettes the story relates, but I do want to suggest that it glosses over some important nuances. Let's start with attitudes towards policing. In the summer of 2020, following the police murder of George Floyd, mass protests brought attention to the Black Lives Matter movement and a number of inter-related policy proposals to shift away from carceral approaches to crime. The slogan "defund the police" meant different things to different people. No doubt many of the people using it did not literally mean that police should be abolished; rather, they were suggesting that many of the public resources given to the police should be diverted to other priorities that would lead to fewer deadly police/citizen interactions and m

Do you need a break from thinking and/or freaking out about the election? If so, you've come to the right place, at least today. Rather than writing about real or imagined election interference, I've chosen to devote my essay today to fan interference--as illustrated chiefly by two plays in the recently concluded World Series between the Dodgers and the Yankees. In Game 1, a Dodgers fan seated behind the wall in left-center field reached just over the wall to catch a ball hit by Yankees second baseman Gleyber Torres. The umpire immediately signaled fan interference based on a judgment that if the fan had not interfered, the ball would have hit the wall and stayed in play. Torres was awarded a double. Here's the play . For Yankees fans, that play brought to mind Game 1 of the 1996 American League Championship Series, when 12-year-old fan Jeffrey Maier very clearly reached over the stands to catch a ball hit by Yankees shortstop Derek Jeter, preventing it from being caught by

For the past four years, I have noticed a worrying pattern of Democrats and journalists uncritically accepting the false narrative that Donald Trump could be installed in office through a special House vote, so long as he can push his opponent's electoral vote count below 270 via baseless challenges to their slates of electors.  The Trumpian position -- which, again, some very smart people have accepted as a given -- is that a candidate must receive a majority of the total number of electoral votes that could have been cast , not a majority of the number that actually are cast.  That is not, however, what the Constitution says. In response to this potentially disastrous concession by non-Trumpists, I have written two pieces with Professors Dorf and Tribe ( one in 2020 and the other earlier this week) explaining that the relevant constitutional text in the Twelfth Amendment simply and clearly does not say what Republicans want it to say.  What we now call the "House-decides e

Before turning to the issue teased in the title of this column -- Donald Trump's fascination with ruinous tariffs -- I should come clean and admit that doing so is both awkward and a guilty pleasure.  I will explain the latter in the course of the discussion below, while the sense of awkwardness rather obviously springs from the simple fact that this election is not about tariffs or policy at all. It feels strange -- and borderline irresponsible -- to use my little corner of the internet to talk about anything other than the fascist threat directly facing the country and the world, especially now that the last shreds of deniability regarding Trump's Nazi sympathies have been tossed away.  That Trump is the one who finished the job on himself is in some sense surprising, but also not.  In any case, talking about anything other than the imminent death of democracy is, again, awkward. In a Dorf on Law column last week, I addressed one of the important outstanding questions about

Last Thursday night at a conference at the University of Florida devoted to originalism attended by lawyers, academics, students, federal judges, and the entire Florida Supreme Court, Judge William Pryor, the Chief Judge of the 11th Circuit, gave the keynote address. He told the audience that he had been on the bench for several decades, that he is and always was an originalist, that he had written hundreds if not thousands of decisions, but that he only had to “wrestle with the original meaning of the Constitution in four cases.”  He also said that “inferior” courts such as his are bound by non-originalist Supreme Court cases until the justices change them, and that most of his job in the constitutional arena is to apply Supreme Court precedent. He used the word modest repeatedly to describe the proper mindset for federal judges.  I thought it fascinating that one of the most famously originalist judges in the country, who self-identified that way long before it was cool to do so, sai

Early last week, Professors Neil Buchanan, Laurence Tribe, and I submitted a proposed op-ed to the Washington Post . The Post 's editors accepted the op-ed and originally scheduled it to run last Friday morning but then decided to delay its publication until today, because on Friday it would have competed with too many other op-eds. That struck us as sensible, so we acquiesced in the delay, which would have been fine were it not for  its owner's subsequent craven decision not to endorse a candidate in the presidential election, thereby breaking with a tradition it has almost always followed over the last five decades. Buchanan, Tribe, and I join the chorus of criticism that is rightly raining down on Jeff Bezos for his anticipatory capitulation to the potentially looming dictatorship of Donald Trump. Democracy dies in cowardice. My co-authors and I considered pulling our op-ed but decided not to do so for two main reasons: first, the editors who agreed to run (and provided use

Before Lyndon Johnson nominated him to the Supreme Court, Abe Fortas was Johnson's lawyer and friend. That does not excuse the role that Fortas continued to play as a confidante of Johnson when considerations of judicial ethics and separation of powers ought to have led him to keep the president at arm's length or at least to keep their discussions to matters that did not implicate their respective day jobs. Likewise, Antonin Scalia was friends with Dick Cheney before they became a Supreme Court Justice and Vice President, respectively. Even so, although I agreed that Scalia was not technically required to recuse himself from a case involving the Vice President after a duck-hunting trip they took together, Scalia's behavior and defense thereof were tone-deaf. That said, we can understand  how Fortas wanted to keep up his friendship with Johnson, and Scalia his friendship with Cheney. People who attain power remain people with bonds of friendship that can be painful to seve

It is now beyond merely the conventional wisdom to say that the stakes in the 2024 election make it important that Kamala Harris not only win but that she win by as many votes as possible.  I am not sure where or when conventional wisdom becomes dogma, but on this matter of shared belief, we clearly passed that point a long time ago.  But is there anything more than repetition and a vague head-nodding kind of instinct to back up that idea? In the old days, the logic was that winning candidates not only needed to eke out a victory but to win a Clear Mandate to Govern.  Even before Trump, however, that gauzy notion had already become more than a bit silly.  Most notably, George W. Bush's backers (including Dick Cheney) insisted that he had a mandate coming out of the 2000 mess.  Having lost the popular vote and been bailed out by the Electoral College and the Supreme Court, Republicans still had the gall to insist that "the American people" had voted for Bush's agenda.