Dorf on Law

Say anything to take power.  Do everything to hold power.   That is effectively the mantra of a rising dictator.  And in the United States today, on the eve of the annual Independence Day celebrations, the verb tense has now changed from "rising" to "risen."  In a conversation earlier today, a friend said, "People talk about whether there's a constitutional crisis.  That's no longer the question, because ...." and I finished the sentence, "we're already in post-constitutional mode." Given my decade-long series of analyses concluding that the US would soon no longer be a constitutional republic governed by laws and not men and with institutions guaranteeing ordered liberty, this is hardly surprising.  My friend and I both agreed, however, that this happened much,  much  more quickly than we expected -- and we honestly thought that we had long been on the outer boundaries of pessimism.  Oh well. How do we know that that fundamental chan...

In 1937, President Franklin Delano Roosevelt (a Democrat) took to the most important media form of the day (radio) to castigate the Supreme Court for blocking many of his New Deal programs designed to ease America out of the Great Depression. He argued that the justices had to be replaced by younger ones more attuned to current economic problems. He said that we needed to “save the Constitution from the Court.” Soon thereafter, Justice Owen Roberts, a Republican, changed his mind in a few important cases (often called the “switch in time that saved nine”), and FDR’s plan was no longer needed. Less than twenty years later, a Supreme Court that had nine Democrats stopped President Harry Truman (a Democrat) from seizing the nation’s steel mills in what he called a national emergency in one of the most important cases in American history. Since that time, and until quite recently, the United States Supreme Court has, to varying degrees, issued decisions both parties could celebrate...

Supreme Court Justices have an unfortunate tendency to pretend that difficult issues are easy. Both Justice Barrett's majority opinion and Justice Sotomayor's dissent in Trump v. CASA, Inc . commit this sin. (For ease of presentation, I'll focus on the majority and the main dissent, but the same could be said for the other opinions, as well.)  The case asked whether district courts had overstepped in issuing nationwide injunctions halting the implementation and enforcement of President Trump's birthright citizenship Executive Order . That Executive Order purports to deny U.S. citizenship to persons born in this country (A) if the person's mother was unlawfully present in the U.S. and the father was not a U.S. citizen or lawful permanent resident, or (B) if the person's mother's presence in the U.S. was lawful but temporary and the person's father was not a U.S. citizen or permanent lawful resident. Plaintiffs argued that the E.O. violated the Fourteenth...

I'll start by giving credit where credit is due. In Mahmoud v. Taylor , Justice Alito, writing for the majority, rejects the defendant school board's contention (echoed by the dissent) that the LGBTQ+-inclusive curriculum merely "exposes" students to ideas that were inconsistent with the religious views of their parents. A fair assessment of the books and the guidance makes clear that the school board aims to instruct students on the importance of treating LGBTQ+ persons with respect and dignity. And now I'm done giving Justice Alito and the majority credit. They get one thing right. And it wasn't even an important thing, as Justice Alito himself says that it's not essential to distinguish between exposure and instruction, as either could substantially burden religion. Meanwhile, as I'll now explain, apart from getting that one apparently unimportant thing right, the majority got the important stuff wrong. Let's start with the biggest thing. The op...

Much will no doubt be written (perhaps including more thoughts from me) about today's SCOTUS ruling in Trump v. CASA . Headline writers predictably will--indeed already have--tell the public that the Supreme Court expressed a favorable view on the merits of the Trump administration's executive order restricting birthright citizenship, even though the Court specifically disclaims any view on the merits. In today's column, I raise two questions: (1) Is the decision ideological? (Answer: yes). (2) Is the decision practically important, given the workaround suggested in Justice Kavanaugh's concurrence? (Answer: probably yes, given doubts about whether the workaround will work.) (1) There will be some gnashing of teeth over whether the decision is ideologically based. It's true that the upshot of the ruling is to limit the ability of federal district courts to constrain the Trump administration, but as the majority opinion of Justice Barrett and the concurrences illustra...

In my  Dorf on Law   column earlier this week announcing my very recent move to Ireland, I wrote: "Settling in will of course take some more time, but I wanted to get back to my writing as soon as possible."  I concede, however, that I am in a bit of a honeymoon period.  Any ability to write my usual steely-eyed analyses of the world's horrors is thus a bit undercut by a personal sense of calm and optimism. Even so, I will offer below some policy-specific thoughts via a Dorf on Law  Classic (rerun) that begins with an Irish reference.  But first, I hereby offer a public confession.  In an email earlier today to a frequent reader, I wrote this: As I settle into my expatriate life, my shameful secrets are: (1) I gave up on U2 when they collaborated with Apple to force an (undeletable) album onto everyone’s iPhones in 2014 [in what became known as the time that " U2 and Apple Spammed the World ]." (2) I no longer like Guinness, and (3) River Dance creeps...

My latest Verdict column went live on Monday morning. In it, I offered faint praise and substantial criticism for the Supreme Court's decision in United States v. Skrmetti , which upholds Tennessee's ban on gender-affirming care for minors.   The praise is for the civil tone of the majority opinion by Chief Justice Roberts. Unlike many Republican politicians (especially President Trump) and even some judges, Chief Justice Roberts refers to transgender persons respectfully. The criticism is for what I regard as a highly formalistic approach to identifying sex discrimination and discrimination based on transgender status and for sanitizing transphobia by taking too seriously the state's profession of concern for the health and informed consent of trans minors. My column also criticizes the three Justices (Thomas, Alito, and Barrett) who write separately to say that they would hold that discrimination based on transgender status does not trigger heightened scrutiny, either as...