Dorf on Law

If you had asked me a year and a half ago what the prospects were for President Trump's executive order limiting birthright citizenship if and when the issue made it to the Supreme Court, I would have said the Court would reject the order either 9-0 or 8-1, with 7-2 being my upper limit on dissents. The two dissenters I would have predicted, obviously, would have been Justices Thomas and Alito. Professor Buchanan, who is, depending on one's view, either more cynical or less naive than I am about the Supreme Court, thought that the Court would likely uphold the order--even though, as he made very very clear in his February 2025 blog post , he believed the argument for doing so extraordinarily weak. But he noted how, with support from motivated legal scholars, off-the-wall ideas can become on the wall (in Professor Jack Balkin's memorable phrasing). I never quite got all the way to Professor Buchanan's view, but my prediction grew closer to his a year ago, after the Supre...

Justice Kavanaugh's opinion for the Court in  West Virginia v. B.P.J.   is a culture warriors' mixed bag. In addition to making clear how important he thinks girls' and women's participation in competitive sports is, he includes some trans-inclusive language at the end of his opinion. At the same time, however, he repeatedly uses the term "biological male" when referring to transgender girls and women, and not just when it's relevant to parsing the challenged policies. In so doing, the lead opinion sides with the ongoing national anti-trans panic. That said, I prefer the tone of Kavanaugh's majority to the gratuitously and vehemently anti-trans concurrence of Justice Thomas. I suppose the best thing that can be said about that concurrence is that Justice Alito didn't join it. What about the substance? Let's start with the Title IX claim, which was at issue in  B.P.J.  but not the companion case of  Little v. Hecox  (which, as the dissent conten...

The Supreme Court's long expected decision in  Trump v. Slaughter  is ostrich-like in the majority Justices' notable refusal to examine how its decision might empower a president with distinctly autocratic tendencies . (The ostrich comparison is not originally mine; Justice Jackson called the majority in  Students for Fair Admissions v. Harvard   "ostrich-like" in its "hope that preventing consideration of race will end racism.")  As most commentators expected, the Court in  Slaughter overruled Humphrey's Executor v. United States   and held unconstitutional for-cause removal protection for FTC Commissioners (and, by extension, most other independent agencies' leadership). Chief Justice Roberts' opinion relies heavily on founding-era materials to conclude that the framers created a "unitary and accountable executive." I happen to believe that the Court places too much weight on founding-era history and also that its reading of that his...

Given the Court's failure to grant interim relief and its per curiam opinion last year in Trump v. Wilcox , the ruling today in Trump v. Slaughter cannot have come as a surprise to anyone paying even the slightest bit of attention. That is not to say that Slaughter will be anything but a disaster. By invalidating removal restrictions for the Federal Trade Commission (FTC) and nearly every other hitherto independent agency,  the Court has backed the ongoing onslaught of political cronyism as against professional government. The decision would be harmful under any circumstances. It is all the more so now, when the particular president empowered to remove members of independent agencies without cause is a corrupt, vindictive narcissist whose preferred replacements for subject-area experts are sycophantic ignoramuses. Having said that, I will give the conservative super-majority who signed onto the Chief Justice's opinion in Slaughter a little bit of credit. They had the decency ...

Good morning! This morning the Supreme Court will hand down opinions in some or all of the merits cases remaining on this docket from the OT 2025 Term. We await rulings in: Trump v. Barbara (birthright citizenship). I blogged about the case here and here . Prof Krishnamurthi blogged about it here . I also hosted a guest post on the case from Profs Scott Titshaw and Stephen Yale-Loehr. And I wrote a Verdict column about the policy stakes. Trump v. Slaughter (independent agencies). I blogged about this case before and again after the oral argument. Trump v. Cook (pretextual firing of Fed Governor Lisa Cook). I addressed some of the issues at stake back in August of last year. I took a deep dive into whether the Fed is really distinguishable from other independent agencies just before the oral argument. Little v. Hecox and W. Va. v. B.P.J. (transgender athletes). I filed a brief  (as co-counsel and as an amicus party) in support of the trans athletes in these cases. I prev...

Reasonable people can disagree over whether the Constitution as a whole protects an individual right to own guns apart from militia service. Although the Supreme Court has misread text and distorted history to locate that right in the Second Amendment, which only applies to militia service, such a right could be created by reasonable judicial interpretations of the Ninth and Fourteenth Amendments. After all, the Court has recognized an array of fundamental unenumerated rights, such as the right of competent adults to refuse medical treatment, and Americans have prized their guns for centuries in ways that might suggest judicial protection for such a right. Reasonable people can also disagree in many cases involving gun laws over whether the right is burdened in ways that are not justified by the reasons supporting the law. The virtually complete ban on handguns in District of Columbia v. Heller , for example, might be such a law. But the Supreme Court’s decision in New York State ...

In Wolford v. Lopez , Justice Alito wrote an opinion for a 6-3 Court, holding that a Hawaii law that requires express consent from the owner of private property otherwise open to the public to bring a firearm onto the private property violates the Second Amendment as made applicable to the states via the Fourteenth Amendment. Much of the dispute followed a familiar pattern in ideologically divisive Second Amendment cases. The conservatives invoked history and tradition to say that the challenged law is an impermissible innovation; the liberals objected to the test but said that even applying it, the law should be upheld. Beyond the usual back-and-forth, Justice Jackson, dissenting for herself and Justice Sotomayor, chastised the majority for considering history and tradition only at step 2 of the Bruen   test. The logic of originalism, she said, would make the question whether Hawaii's law even infringed Second Amendment rights subject to an inquiry into the original understanding...

Yesterday, the Supreme Court held that the Religious Land Use and Institutionalized Persons Act (RLUIPA) cannot be the basis for a lawsuit for money damages against state prison officials who blatantly violate it because, according to the 6-3 majority opinion of Justice Gorsuch, laws enacted pursuant to the Spending Clause cannot authorize liability against people who are not the recipients of federal funding. Louisiana, the Court said, took the federal money and thus subjected itself to RLUIPA, but the officers did not. As a consequence, petitioner Damon Landor was left without a remedy against the officers who shaved his head in violation of RLUIPA, even after they were clearly informed that doing so would violate Landor's sincere Rastafarian beliefs.  In my latest Verdict column , I offer three reasons why the holding in Landor v. Louisiana Dept of Corrections and Public Safety   is problematic. The first two track arguments made by Justice Jackson (joined by Justices ...

Participating in politics never has been, is not now, and indeed must never involve engaging with others solely on the grounds of pure reason.  Emotion matters, evidence matters, and we have seen to our horror what can happen when those who pretend to rely on cold, supposedly objective reason get their hands on the levers of power. For most of the last few decades, however, I have been remarking on the notable decline in standards in US politics regarding what counts as an argument.  Reason is not at all sufficient, but it certainly is necessary.  And although Democrats offer more than the occasional example of forehead-slapping silliness, there is emphatically no equivalence between the two parties. Long before Donald Trump came along, Republicans had decided that "message discipline" was more important than the message itself.  Rote repetition of talking points became their standard operating procedure, no matter what any reporter or political opponent might do to ...