Dorf on Law

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?"  There are so many outrageous things happening at all times that we lose track of too many truly terrible things in the maelstrom, with a new outrage always there to move attention away from ongoing horrors.  Sometimes the next distraction is silly, like so-called escalator-gate , in which the Foxiverse recently went insane claiming that a slow-moving set of stairs  lurched  to a halt and nearly injured or killed their favorite autocrat.  But usually, the next news cycle is filled with some other genuinely horrible thing that should hold everyone's attention, only to be replaced again with something else,  ad infinitum . None of which is to say that I do not understand why some big stories disappear.  But "something else horrible happened, so we need to talk about th...

Monday on this blog I previewed the oral argument in Chiles v. Salazar , highlighting my ambivalence about the case: although I am in sympathy with Colorado's policy goals in banning conversion therapy, I expressed concern that if Colorado wins on the ground that regulations of talk therapy are not regulations of speech and thus trigger only rational basis scrutiny, then the same argument would be available to sustain a hypothetical red-state ban on gender-affirming care accomplished wholly through talk therapy. Unsurprisingly, several of the Justices raised the same concern during yesterday's argument . Justice Kagan asked about "the exact opposite kind of law," and Justice Gorsuch inquired about a "mirror image" law. To their credit, both James Campbell, arguing for petitioner Kaley Chiles, and Deputy SG Hashim Mooppan, arguing for the U.S. as amicus, acknowledged that if Colorado's ban triggers strict scrutiny, then so should a mirror-image law bannin...

On Tuesday, the Supreme Court will hear oral argument in Chiles v. Salazar , a difficult case involving “conversion therapy.” Colorado, like many other other states, bans treatment that is intended to change a minor’s sexual orientation or gender identity. The law makes an exception for people “engaged in the practice of religious ministry.”  The plaintiff is a Colorado Springs Christian therapist who argues that the law is an unconstitutional gag order on licensed counselors. Colorado argues that the ban simply regulates a dangerous and ineffective medical treatment. The lower courts ruled for Colorado mostly on the basis that the law primarily regulates professional conduct, not speech, and therefore the law does not violate the first amendment. This case is difficult because it requires the balancing of the state’s permissible goal of regulating dangerous medical treatments with the free speech rights of therapists and others to say to their clients what they feel is important ...

The Supreme Court officially begins its new Term today with two relatively small-ball cases. The real action begins tomorrow, when the Court will hear argument in Chiles v. Salazar , which presents the question whether Colorado's law forbidding licensed counselors from performing conversion therapy on minors violates the First Amendment. The culture-war dimensions of the case are made most apparent by contrasting how the petitioner and the respondents phrase the question presented. Here's the petitioner's version of the question (which, strictly speaking, is the question on which the Court granted certiorari ): "Whether a law that censors certain conversations between counselors and their clients based on the viewpoints expressed regulates conduct or violates the Free Speech Clause." And here's the respondents' version : "Whether the First Amendment allows states to regulate professional healthcare treatments—including treatments that use words—to pr...

Some of the people who have been targeted by the Trump regime as "foreign enemies" have been academics.  Early this year, two graduate students from Tufts University and Columbia were swept off the streets for expressing views that Republicans now view as unacceptable.  Scholars from outside the US have been turned away or even detained at the border, and the White House continues to threaten American universities with punishments for, in the end, not being MAGA. Things are not getting better, and as with too many other areas of American life, the institutions that might do something useful are not rising to the moment.  In particular, consciously or unconsciously, some American academics have at least implicitly decided that their financial comfort is more important than maintaining contact with their international peers.  I do not draw that conclusion lightly, because it is a serious problem and deserves to be called out. Last month, I wrote a rather angry (though ...

Why are Trump and the Republicans doing so many things that harm the US and global economies?  More accurately, given that the economy has always lagged under Republican presidents, why are they doing so many  more  such destructive things than they used to?  The answer is simply that people who have become powerful will not protect the things that made them powerful because they are keenly aware that those things could soon make other people powerful.  It is simply another example of the "pull up the ladder behind me" phenomenon, but in an especially perverse way. But let us back up a bit.  Last month, I initiated an occasional series of columns under the umbrella title: "Who Knew That Trump's Superpower Would Be Destroying Wealth?"  Part 1 explained that Donald Trump and the Republicans claim to be economic geniuses but mostly are at best lucky (and at worst grifters and frauds).  At one point, I quoted a  New York Times   op-ed...

Note to readers: Fifteen days ago, I wrote  that the Democrats' only politically sane/viable choice in this year's budget battle would be to refuse to capitulate, which would mean allowing the government to shut down if necessary.  Necessary . Predictably, the Republicans are throwing all of their favorite excrement against every wall they can find, including the absurd feed-the-base-the-hatred-they-crave  claim  that, as House Speaker Mike Johnson shamelessly put it, the "Democrats could have worked with us. Instead they prioritized taxpayer-funded benefits for illegal aliens."  Wait, how is this not the fault of trans people who got together with Antifa to laugh about all the dead birds under windmills (and somehow with overweight military personnel in the mix)?  I have no doubt that Republicans are working on those talking points at this very minute. Because of travel and illness, I am not able to write a new piece today.  I do note, however, ...