Dorf on Law

[N.B.  The following essay first appeared earlier this month at the blog of the Knight First Amendment Institute at Columbia University . As the institute's executive director Jameel Jaffer explains in an introductory essay , my contribution is one of several to emerge from an all-day gathering of free speech scholars. I encourage readers to check out the other insightful essays in the series .] In one of the first judicial rulings in a lawsuit charging a university with violating Title VI by allowing students (and possibly others on campus) to stage protests of the war in Gaza, Federal District Judge Richard Stearns rejected Harvard’s motion to dismiss the complaint as failing to state a claim. According to Judge Stearns, the plaintiffs’ allegations, if taken as true (as they must be in resolving a motion to dismiss) established that Harvard had been deliberately indifferent to student-on-student antisemitic harassment in violation of its Title VI obligations. In so ruling, Judge

"As Mr. Trump’s rhetoric grows ever more vengeful and openly authoritarian, a great deal turns on the willingness of members of the legal profession to make common cause with him."  Kate Shaw, a law professor at Penn, wrote those words in a New York Times op-ed a couple of days ago.  Although Shaw's focus was on the upcoming election-related scramble, her words are just as relevant to what has already happened regarding Trump's thirst for absolute power. Who are the members of the legal profession who will pave the way to turn Trump's worst impulses into horrific reality?  Last week, I wrote a column in response to an NYT op-ed by another law professor, Jack Goldsmith at Harvard, who worked himself into high dudgeon over the decision by Special Prosecutor Jack Smith to proceed with the federal criminal case against Trump in Washington, DC, regarding the January 6th insurrection. In classic concern-troll style, Goldsmith wrote that Smith "owes us an explanat

Is Criminal Abolition Unconstitutional? Guha Krishnamurthi On the campaign trail, former President Donald J. Trump and his running mate Senator J.D. Vance have insisted that Dobbs should be understood as a decision grounded in federalism—merely designed to return the abortion issue to the states and their voters. But one needn’t search too far to see that Trump and Vance have nationwide abortion bans in their sights. The Trump-sponsored Project 2025 makes this explicit. Indeed, so did Vance’s own policy page, now deleted (but the internet never forgets ). The first, most obvious pathway for a nationwide ban is federal legislation. Gonzales v. Carhart indicates that such legislation banning abortion procedures would be determined constitutional. Indeed, there is good reason to think that the Republicans would be willing to dispense with the filibuster in pursuing such legislation, just as the Democratic Party expressed willingness to bypass the filibuster to pass federal legislation

Much of Wednesday's SCOTUS oral argument in Glossip v. Oklahoma focused on the question whether the decision of the Oklahoma Court of Criminal Appeals rested on an independent and adequate state law ground. If so, then, under longstanding precedent, it is not reviewable by the Supreme Court. The reason is simple. Suppose the Court were to reverse the Oklahoma court's rejection of petitioner Richard Glossip's claims that the prosecution withheld exculpatory evidence (in violation of Brady v. Maryland ) and knowingly presented false testimony (in violation of Napue v. Illinois ). If the Oklahoma decision rested in addition on the fact that Glossip's effort to have his conviction overturned was untimely, then reversal on the federal grounds would not make a difference; Glossip would still lose the case. Because the Supreme Court reviews judgments, not opinions, an independent and adequate state law ground bars SCOTUS review. Both Glossip and the state AG--who supports vac

Election interference?!?!  The US Bureau of Labor Statistics released its September inflation report today, and the news is good.  According to a Washington Post news article this morning: "Inflation continued to cool in September, extending a trend of easing price increases and an improving economy ... ."  Moreover, "Thursday’s figures represent 'the best inflation outlook in the economy over the past three years,' said Joe Brusuelas, chief economist at RSM US."  But that article's headline also noted a political angle to the news: " Inflation eased slightly in September, as election nears." Hmmm.  This news is coming "as election nears," you say?  Might one argue that the federal government's statistical agencies should not issue economic data so close to Election Day -- indeed, after early voting has already begun -- lest doing so affect the way people might vote?  Most people would say that there is nothing wrong with thi

Yesterday, the Attorneys General of thirteen states and the District of Columbia each filed a separate lawsuit against TikTok . As readers no doubt know, a federal law requires ByteDance to sell TikTok or to cease operations in the U.S. TikTok is currently suing to enjoin the enforcement of that federal law, but based on the oral argument in the D.C. Circuit last month, it looks unlikely to prevail. The state suits are not entirely overkill, however, because they seek monetary as well as injunctive relief, so they could go forward even if TikTok ceases operations in the U.S. The federal government's defense against TikTok's free speech claim is that Congress has not targeted TikTok because of opposition to the content on its platform but because of national security concerns. Much of the evidence for the conclusion that TikTok, as a Chinese-owned company, poses a national security risk, is not available to the public, so it's difficult for someone (like me) who has not see

My recent writings on both Dorf on Law and Verdict have, not at all surprisingly, been driven by the ups and downs of the US presidential election.  I did surprise myself, however, when I noticed that those columns added up to a larger narrative -- or actually two narratives, if one also counts my ongoing anguished critique of the media's coverage of American politics.   That latter, overarching story of media malpractice, however, is not my focus here, mostly because there are only so many ways that one can mock big-time media types who reveal themselves to be as shallow as a tea saucer.  I will surely have reason to go back to that subject again -- most likely very soon, unfortunately -- but for now, I want to focus on something a bit less familiar. In the broadest terms, my narrative regarding Donald Trump and J.D. Vance (as well as their sycophants and enablers) has become a one-two punch.  Punch One: I have argued (most directly in a two-part column on Verdict on September

Over the years on this blog, and in my books, articles, and essays, I have tried to convince readers that text, history, tradition, and precedent do not matter to the justices of the Supreme Court anywhere near as much as their personal ideological visions for America. This critique applies to both sides, but there are currently six Republicans on the Court with an agenda to further the interests of the Republican party, not the rule of law. The symbiosis between the Roberts Court and GOP values has been the consistent pattern of the Court’s cases since 2005-2006, when Chief Justices Roberts replaced Chief Justice Rehnquist and Justice Alito replaced Justice O’Connor. The state of the law in 2005 on the most important and difficult questions of constitutional law compared to the current rules governing these issues demonstrates that the Republican party agenda is much more important to the Roberts Court then any alleged open-minded evaluation of relevant text, history, traditions, and