Dorf on Law

Readers of this blog know that I am a harsh critic of the Roberts Court (to say the least). The current GOP justices have dramatically altered the constitutional law of abortion, affirmative action, gun control, separation of powers, free speech and free exercise, among many others, in a short period of time. Partisanship is a much more important factor to the Roberts Court than fidelity to precedent, text, or history, and it is not close. The Court's utter disregard for prior cases, however, has long been a feature of Supreme Court decision-making. Constitutional law changes substantially in this country when the justices’ politics and values change, and often for no other reason. The Supreme Court has never been an institution that puts law in any form above the justices' aggregate policy preferences. This disregard of prior law is not a 21st-century problem. A dramatic story rarely told that unfolded more than 150 years ago reveals the true character of the Supreme Court. ...

As I noted here on the blog last week, I'll be spending the day tomorrow with lawyers, a judge, a journalist, and several other law professors discussing the most recent Supreme Court Term at the Practicing Law Institute's annual Review.  One of the cases that will undoubtedly receive a great deal of attention is Trump v. Slaughter , in which the Court invalidated good-cause removal protection for members of the Federal Trade Commission and, by clear implication, nearly every other independent federal agency. When Slaughter was decided, I wrote a highly critical analysis of the opinion. I stand by my analysis but in today's essay I want to consider another ground for criticizing the ruling that was offered last week by my former colleague, Columbia Law Professor Jeffrey Gordon. In an essay last week on Balkinization , Professor Gordon argues that Slaughter is wrong in light of the 22nd Amendment. Readers will recall that the 22nd Amendment is the one that Donald Trump kee...

I should state up front that this column can be added to the "failing to remember history, doomed to repeat it" file.  There is nothing new, of course, to the admonition that it is important to understand history.  Although that is indeed an old point, it nonetheless needs to be repeated again and again, because too many people forget.  And because history inescapably gets longer, while attempts to rewrite it -- especially in this era of pathological lying from the Oval Office -- are part of an ongoing disinformation campaign, the specifics matter. As I will argue below, there is an alarming kind of retroactive triumphalism about Trump's 2016 and 2024 electoral outcomes that is disconnected from reality, a triumphalism that we can also see in contemporary commentary about Ronald Reagan.  Those two accidental presidents are now treated as all but inevitable by people who have simply decided to impute their own spin on what "the American People" said with their vo...

Yesterday on this blog I discussed Dr. Anthony Fauci's invocation of his Fifth Amendment right against self-incrimination when testifying before the Senate Committee on Homeland Security and Governmental Affairs. I explained why it's not clear that Fauci had such a right, given: (1) that there is no privilege with respect to "anticipatory perjury"; (2) his pardon from President Biden on federal charges for pre-January 20, 2025 conduct; and (3) the implausibility that anything he said would tend to incriminate him for state crimes not covered by the presidential pardon. In response, a number of readers pushed back on (3), pointing to the fact that almost immediately after Fauci's testimony, Florida Attorney General James Uthmeier took to X to announce: "Fauci's lack of candor to Congress is unbelievable. My office is launching an investigation into Dr. Fauci. It's past time we get the truth of what happened during COVID." To state the obvious, an...

In response to a subpoena, yesterday, Dr. Anthony Fauci appeared before the Senate Committee on Homeland Security and Governmental Affairs. Citing the fact that Senator Rand Paul is out to get him, Fauci invoked his Fifth Amendment right against self-incrimination . Fauci's characterization of Paul was not fanciful. Paul has said Fauci should be behind bars, and on the eve of Fauci's appearance before the committee, Paul released over 1,100 pages of Fauci's diaries from the latter's time in office. (The diary entries were found on computers in the Department of Health and Human Services and turned over by RFK Jr. to Paul, who chose to release them to the public.) Hold on! Didn't President Biden give Fauci a pardon just before he left office? Indeed he did . So what was Fauci afraid of? The most straightforward answer might be that between receiving his pardon in January 2025 and invoking his Fifth Amendment right on Wednesday, Fauci committed a crime he had reason t...

One week from today and for the 28th consecutive summer, I will participate in the Practicing Law Institute's 28th Annual Supreme Court Review . As in other years, I'll be on most of the panels during the day, sometimes commenting on cases others present and sometimes presenting cases myself. I've got some "big" cases to present but also one pretty small onet: FCC v. AT&T . The end of the Term last month was a busy time for me. In addition to writing about the big cases for this blog, Verdict , and SCOTUSblog , I was hard at work on updates to my casebook. As a result, I didn't get around to reading FCC v. AT&T until yesterday. Although the outcome of the case is clearly correct given the Court's premises (as I'll explain momentarily), it is somewhat puzzling how the case even got to the Supreme Court. By the end of this short essay, I'll offer my best guess. But first, I'll discuss the merits. To oversimplify somewhat, the Federal Comm...

Earlier this month, a divided panel of the Eleventh Circuit surprised many people -- most definitely including me -- with a ruling that Florida-based journalist J.C. Bruce hailed in  The Tropic Press with this headline: " A victory for the First Amendment: DeSantis' pet project--the Stop WOKE Act--is shredded ."  The  Chronicle of Higher Education  (CHE) offered a more muted headline: " Are 'Divisive Concepts' Laws on the Ropes? "  Notwithstanding their different tones, both articles made it clear how important the Eleventh Circuit's ruling is. The majority opinion was written by Trump appointee Britt Grant, and her language was colorful, to say the least.  Bruce was obviously having a great time directly quoting the majority's handiwork, including these gems: "Florida's salary-for-speech rule is a breathtaking assertion of power to ban unpopular ideas from public discourse in the very places the State's own statutes recognize as ...

In my most recent  Verdict column , I offered some thoughts about a strange invitation for amicus briefing from the Board of Immigration Appeals (BIA). The BIA asked for views about whether it is bound by Supreme Court precedent "even in situations where an application of that precedent would require the Board to find a statute or regulation unconstitutional." As I explained in the column, of course the BIA is generally bound by Supreme Court precedent, but in certain circumstances that restriction can conflict with a prohibition on the BIA declaring acts of Congress unconstitutional. My column explained that there can be a conflict in cases involving as-applied challenges to federal statutes, depending on how broadly or narrowly one construes Supreme Court precedent. In order to explore what I took to be an interesting question, my Verdict column took the BIA amicus invitation at face value, but I cautioned at the end that one must be mindful that the BIA could well be acti...

In Professor Buchanan's "Veganniversary" essay yesterday, he referred to a variety of bad arguments against veganism, locating them within the larger culture that of late celebrates what many readers (and this writer) still regard as toxic masculinity. As it happens, I recently had occasion to encounter another familiar bad argument, which I'll describe as a way of making a point about the nature of strong beliefs. I've just completed a six-day bicycle tour of Counties Kerry and Cork in Ireland. It was part of an organized trip that included me, one of my adult daughters, two guides, and seven strangers who soon became friends. We all got along very well and had a splendid time. At various shared meals, I was given different food items from the standard fare, so it quickly became known that I'm a vegan. Mostly this went unremarked but at one point during the middle of the trip, one of the other cyclists, who, I should emphasize, is a very smart person with go...