Dorf on Law

One major goal of the American criminal justice is to provide the right balance between the burden on the prosecution and the defense. The U.S. has a presumption of innocence and a requirement that the prosecution prove guilt beyond a reasonable doubt. We have juries, and the vote for a guilty verdict must be unanimous . Overall this balance is uniquely pro-defendant. By contrast, even democratic France is pro-prosecution. Now, President Trump and his minions are changing the American rule of law to make it even more pro-defendant, but for the wrong reasons and in the wrong way. We now have a quid pro criminal justice system. Those who pay enough money, or contribute otherwise, to the Trump machine receive favors, pardons dropped prosecutions, or reversals where the government appeals on their side. These are generally rich people, not poor. The troubling pardon list is growing . We have long had a skewed system but it was usually based on harsh social realities for the poor, not gratu...

Congressional Republicans are in the middle of negotiating and (possibly) passing an absolutely disastrous and cruel budget bill, with the only question being how many people it will impoverish, harm, and kill if it passes.  One thing we do know is that any eventual bill will also result in larger annual budget deficits and thus a larger overall federal debt, which is what Republicans do when they are in power.  When Democrats are in power, however, Republicans suddenly become deficit hawks and complain bitterly about increases in debt. Pointing out Republicans' hypocrisy being so five minutes ago, however, I want to ask whether the time has come even for deficit doves like me to move over to the anti-borrowing brigade.  In fact, one might think that I have already done so, because my column earlier this week discussing Social Security included this: "The bottom line is that the now-real concerns about overall federal debt and deficits are entirely a matter of Republica...

L. M. was a 7th-grade student in a Massachusetts public middle school. He wore a t-shirt to school with the message "There Are Only Two Genders" in evident protest of the school's lessons and activities promoting gender identity diversity and inclusivity. He was told by school authorities that he could not wear that shirt. He then donned a shirt that said "There Are CENSORED Genders." The school told him to change from that shirt as well. He did. Then he sued. He lost in the district court and before the First Circuit. He then filed a petition for a writ of certiorari from the Supreme Court. Earlier this week, the Court denied the petition. Justice Alito, joined by Justice Thomas, dissented . They argued that SCOTUS was permitting the First Circuit and school districts to engage in censorship. The dissent makes some notable points--and I'll come to them momentarily--but before doing so, it's worth pointing out the oddity of Justices Thomas and Alito cast...

N.B. The spending bill passed by the House of Representatives last week (and now before the Senate) includes $25 billion for the development and eventual deployment of a missile defense system that President Trump is calling "Golden Dome." My latest  Verdict column explains why this is a terrible idea: it won't work but will likely be destabilizing, increasing rather than decreasing the risk of nuclear war. In today's essay here on the blog, however, I return to a subject I raised earlier this week. ---------- On Monday, I wrote on this blog that the Supreme Court's shadow docket ruling last week in Trump v. Wilcox effectively overrules Humphrey's Executor v. United States --the 1935 Supreme Court case that upheld the power of Congress to create independent agencies. What makes an agency independent is simply that the people in charge of it--the commissioners or board members who head it--can be fired only for good cause. Most of my essay on Monday was devo...

Is Social Security "going broke"?  Is it doomed?  Is it a Ponzi scheme?  No to all of those things.  Two months ago, I returned to those questions in a two - part Verdict column and a complementary Dorf on Law column , emphasizing in particular Elon Musk's completely ignorant but predictable endorsement of the Ponzi scheme accusation.  For as long as Republicans have been trying to undermine Social Security (decades before Trump came along, and really from the moment of its creation in 1935), they have never come up with anything remotely resembling a coherent and defensible argument to support any of their outlandish claims. Had things in the United States continued on their merry way, the worst that could have happened is that the Social Security trust fund would have reached a zero balance sooner than planned.  That might (or might not) have happened in 2034 or so, in which case one of two things would have happened next: (1) benefits would have been ...

On Thursday of last week, the Supreme Court used a shadow docket case-- Trump v. Wilcox --to effectively overrule Humphrey's Executor v. United States -- the one-hundred-year-old precedent that upheld the power of Congress to create federal agencies headed by commissioners who serve for fixed terms and cannot be fired by the president except for good cause. I say the Court "effectively" overruled Humphrey's because it did not officially do so. Officially, the Court said only that the National Labor Relations Board (NLRB) and Merit Systems Protection Board (MSPB)--the independent agencies at issue in Wilcox --do not fit into any "narrow exceptions" to presidential at-will removal power. However, as Justice Kagan (joined by Justices Sotomayor and Jackson) demonstrated in dissent, there is no plausible way to read the majority's action and brief opinion except as strongly signaling an intention to deliver the coup de grâce to Humphrey's at some later po...

The budget bill that Republicans just passed in the House is simply terrible, and I will join in the chorus of criticism soon enough with a full column (or more) denouncing its overall awfulness.  But in this relatively short column today, I will instead note two longstanding items on the Republicans' wish list that made their way into the current version of the bill and which will almost certainly survive to become part of whatever monstrosity is ultimately signed into law.  I chose these two because they each highlight a somewhat unusual kind of confusion in the groupthink of movement conservatives. The first item is the attack on universities, specifically wealthy elite universities.  In my column earlier this week, " In Lieu of a 'Last Lecture,' I Offer These Thoughts ," as well as in what must surely be dozens of columns that I have published over the years, I have argued that universities are uniquely important institutions that should be celebrated and sup...

One of the 20th Century's greatest achievements was Nobel Prize winners President Nelson Mandela, Archbishop Desmond Tutu, and many others defeating the openly racist South African Apartheid system. For about 30 years, the country has been a multi-racial democracy. The minority white oppressors were even offered reconciliatiom and invited to stay. The country remains one of Africa's few democracies despite crime, inequality, and other problems. Yet America's President recently ridiculed this relatively new nation. Trump has no shame. During an Oval Office meeting with the South African President, Trump created a predictable false ambush by suddenly showing a video of fringe far left anti-white politicians. These characters are basically jokes, even in much of South Africa.  Trump used the video and ambush to bolster a shameful fiction that South Africa is committing genocide against South African farmers so they must be allowed to immigrate to the US (while we arbitrarily ...

[Note: Tomorrow I'll be attending an all-day gathering of constitutional scholars and lawyers hosted by the Knight Institute at Columbia to discuss federal funding and the First Amendment. Each of the participants wrote a short paper. They are collected here . My contribution can be found here and is reproduced below.] ----- In   Agency for Int’l Dev. v. Alliance for Open Society Int’l , Inc.  (2013), the Supreme Court invalidated a condition on federal spending. Under the challenged law, which provided money to combat the spread of HIV/AIDS throughout the world, a funded nongovernmental organization (NGO) was required to “have a policy explicitly opposing prostitution and sex trafficking.” The Court held that this condition violated recipient organizations’ right to free speech. Yet the Court’s opinion made clear that another condition on funding—forbidding   the use of the money at issue   “to promote or advocate the legalization or practice of prostitution or sex...