Dorf on Law

By Mike Dorf T'is the season for constitutional law professors to bloviate for the press--and so I've been doing my bit by fielding calls from reporters for CNN ,  Salon , the Wall Street Journal , USAToday , Bloomberg News , and the Star Ledger .  As I should have expected, some of these papers couldn't resist putting my line about "the first gay Justice" in their headlines, although, to their credit, they did include the full context to make clear that I was speaking metaphorically.  Anyway, it looks my yearly fifteen minutes are just about up, so now I'll go back to the more serious business of deeper analysis. * * * Justice Scalia's dissent in United States v. Windsor   contains a good deal of food for thought.  Here I'll discuss three morsels. 1) The Role of the Court In response to one of the reasons that Justice Kennedy and the majority offer for finding that the case was justiciable, Justice Scalia took issue with the former's char

By Eric J. Segall This week the Supreme Court has given us a lot to talk about: affirmative action, gay rights, voting rights, and several five-to-four pro-big corporation statutory interpretation decisions decided along partisan lines. Lost in this wild scramble, however, and yet quite troubling, is what happened to Article III and those pesky little “case” or “controversy” requirements the Justices, especially Justices Scalia and Thomas, say they love so much. You remember those pre-requisites to federal jurisdiction, the ones that have kept numerous public interest and Establishment Clause challenges out of court for so long in cases like Allen v. Wright, Lujan v. Defenders of Wildlife, Hein v. Freedom from Religious Foundation and now Hollingsworth v. Perry as well. Moreover, related to the concerns for appropriate jurisdiction is the Court’s Eleventh Amendment doctrine which has been used by the Justices to block virtually all suits for damages against states and their officer

By Mike Dorf I've now read the majority opinion in Windsor (striking down DOMA) and enough of Perry (dismissing the Prop 8 challenge for lack of appellate standing) to formulate a few instant reactions on a number of points: 1) If Bill Clinton was "the first Black president," Anthony Kennedy has now firmly secured his place in history as "the first gay Justice."  As the author of Romer v. Evans ,  Lawrence v. Texas and now United States v. Windsor , Justice Kennedy makes clear that he not only accepts, but welcomes the task of writing majestic opinions affirming the dignity of gay persons and couples.  He remains fundamentally conservative on matters of federalism and his notions of equality when it comes to race are tightly formalistic, but his legacy is now secure.  A hundred years from now, histories of the Court will treat Justice Kennedy w/r/t gay rights the way we think of Earl Warren w/r/t racial equality. 2) There will be a vigorous debate now ab

By Sherry Colb When I was a little girl, my mom bought me a record album titled "Free to Be You and Me."  The album featured various songs sung and stories told by Marlo Thomas and other celebrities and was intended to communicate to girls and boys the value of gender non-conformity and a willingness to value one another equally and without resort to stereotypes.  One story on the album, as I recall, included a character who always said "ladies first" and insisted on being first at everything, an insistence that ultimately led to her being devoured by a hungry wild animal (a tiger, if memory serves).  Another story included a heroine whose father promised her hand in marriage to whoever could win a race arranged by the father.  The girl ended up running the race along with her intended suitors, and she managed to tie with one of the boys, whom she nonetheless chose not to marry because she wanted to travel the world and become a well-rounded person before consider

By Mike Dorf The opinion of Chief Justice Roberts in Shelby County v. Holder --striking down the coverage formula of the Voting Rights Act (VRA)--repeatedly states that the VRA is an extraordinary piece of legislation, and therefore requires an extraordinary justification.  He and the majority thus find that Congress's continued use of a 40-year-old formula doesn't work.  That strikes me as a fair conclusion, given the premise.  But is the premise right?  What's so extraordinary about the VRA? The Chief Justice and, to be fair, prior cases, point to two features of the VRA: 1) The fact that it treats different states (and localities within some states) differently, thus allegedly violating the principle of equal sovereignty of the states; and 2) It subjects states to a procedure whereby the federal executive "pre-clears" state laws before they take effect.  Are these really extraordinary? Let's begin with equal sovereignty.  The fact is that Congr

By Mike Dorf How should today's decision in the Fisher case  be scored?  Based on what might have happened, surely it's a big win for defenders of race-based affirmative action.  The Court did not, after all, overrule Grutter v. Bollinger .   It did not ban affirmative action in higher education.  It did not--as some who filed as amici worried it might--require that percentage plans be adopted throughout higher education, even in contexts, such as law school admissions, where they have no realistic prospect of working but would cause serious harm. No doubt many liberals are worried by the Court's statement that "the parties here do not ask the Court to revisit [the] aspect of Grutter ’s holding" that found diversity to be a compelling interest. But I'm not worried about that.  Justice Kennedy himself agreed that diversity is a compelling interest in Grutter , and Chief Justice Roberts at least accepted that the Court's prior cases established diversity

By Mike Dorf NYC Mayor Michael Bloomberg's plan for New Yorkers to separate their food waste for composting has, predictably, led to condemnations from the usual quarters.   For example, a New York Post editorial   worries that while initially voluntary, composting will eventually become mandatory, comparing composting to other supposed horrors such as the smoking ban, trans fat ban and failed plan to ban (some) sales of sugary drinks in large containers.  Since the end of communism a generation ago, people opposed to government regulation have had to shift their comparisons from warning about the gulag to warning about the nanny state.  Not every regulatory proposal is cost-justified, of course, but much of the reflexive opposition is not well thought out. To stick for a moment with the Post piece, its authors ask rhetorically:  "I f there’s really $100 million in savings to be had" from composting, "wouldn’t some clever entrepreneur be tempted to offer a soluti

By Mike Dorf Yesterday's SCOTUS ruling in Agency for International Development ("AID") v. Alliance for Open Society Int'l Inc.  could prove to be an important precedent in the "unconstitutional conditions" line of cases.  After a brief description of the case and the ruling, I'll say a few words about the surprising lack of express connection between this line of cases and another line of cases that addresses a very similar topic: federalism limits on how Congress may exercise the Spending Power. At issue in AID  were a federal statute and implementing regulations that required recipients of federal funds for HIV/AIDS eradication efforts to "have a policy explicitly opposing prostitution."  Respondents are organizations that undertake such efforts with federal funds but do not have such a policy.  (Policy experts and governments take different views on whether to oppose prostitution because it is a vector of HIV transmission or to work with

-- Posted by Neil H. Buchanan [A quick update, before I get to today's post: On June 7, I wrote a post here on Dorf on Law describing my "Inaugural Lecture" at the University of Business and Economics in Vienna.  The video of my lecture, as well as the panel discussion afterward, is now available on the university's website.  Click here to link to the video.  The actual lecture begins at the 7:12 mark, and runs to the 39:08 mark.] This is my last post for the next month, during which time I will get married and go on my honeymoon.  Somehow, Dorf on Law -- and the blogosphere in general -- will survive without me.  I really wish that this post could be about something other than the non-scandal scandal involving the IRS, but the story keeps dragging on, and there are actually a few interesting things to say about it, mostly about what is NOT happening.  And what is not happening is any movement in the story suggesting that there was anything other than the set o

By Mike Dorf My latest Verdict column discusses Monday's SCOTUS ruling in Arizona v. Inter Tribal Council of Arizona .  I make three main points: 1) The breakdown is refreshingly non-political; 2) The Court's rejection of a presumption against preemption could herald more findings of preemption; and 3) The case is not so bad for Arizona's citizenship ID law, because it leaves open the possibility that Arizona could bring a new case in which it appeals the underlying decision by the federal Election Assistance Commission (EAC), which said that Arizona is not entilted to demand documentary evidence of citizenship as part of a mail-in voter registration.  Here I want to take a brief crack at the merits of that question that the Court did not decide: Would/should Arizona succeed in a challenge to the EAC ruling that it was not entitled to have the federal registration form include the demand for citizenship documentation? Arizona's argument goes like this: States are e

By Mike Dorf Yesterday's ruling in Alleyne v. United States  produced an interesting division on the Court.  The majority opinion by Justice Thomas was joined by the Court's liberal wing, whereas the four other conservatives dissented.  The case holds that factual findings necessary to the imposition of a mandatory minimum sentence must be found by a jury, not a judge, thus overruling Harris v. United States . It's easy to see the votes of eight of the Justices in conventional liberal/conservative terms, but not the vote of Justice Thomas.  He has been a consistently strong supporter of a broad jury trial right.  Why?  Investigating that question may shed light on a long-running debate in jurisprudence--or at least provide an opportunity for some cheap jokes. Whatever the reason for Justice Thomas's strong views about the jury, they clearly aren't conventional left/right ideology.  Here, as in other cases--like Justice Scalia's writing a dissent re DNA tes

By Mike Dorf Although it's always tricky to predict outcomes of SCOTUS cases, the betting among the cognoscenti is that the Court will invalidate DOMA in the Windsor case and either uphold Prop 8 in the Perry case or find some way to duck the question.  Among other tea leaves we SCOTUS-watchers have been trying to read are Justice Ginsburg's repeated recent statements criticizing the Court for going "too far too fast" in Roe v. Wade .  As I've explained before , I disagree with her analysis of Roe , but there's no denying that she continues to infer from the experience of the last 40 years that the Court ought to tread lightly and go slowly where divisive social issues are at stake.  It's a fair (if not ironclad) inference that her recent statements regarding Roe are meant to prepare supporters of SSM for disappointment.  After all, if Justice Ginsburg thinks that it's too soon to recognize a right to SSM, it's hard to see how one gets to fiv

-- Posted by Neil H. Buchanan In my Dorf on Law post yesterday, I described the simply embarrassing "fact check" provided by PolitiFact regarding the following statement from a Republican Congressman: "The IRS doesn't have to prove something against you. They can walk in and you've got the burden of proof."  The statement is clearly false, and I had even provided the PolitiFact reporter with the statutory language demonstrating it to be false.  Even so, PolitiFact ended up deeming the statement "mostly true."  As a matter of journalism, this really was an embarrassing episode. What is, in some ways, even more interesting is the underlying story behind the current rule regarding the IRS's burden of proof in legal proceedings.  It turns out that this silly Republican talking point -- that the tax system is un-American, because only there do citizens bear the burden of proof, rather than being presumed innocent -- was already the source of

-- Posted by Neil H. Buchanan Two weeks ago, in a Dorf on Law post , I discussed "a small example, with larger implications" of some truly sloppy work by a highly regarded journalist (the White House correspondent for NBC News), who mindlessly took a quote out of context, regarding the ACA supposedly being a "train wreck" waiting to happen.  It was a shameful moment, but hardly the worst that we have seen from our free press recently. I am by no means, of course. the only person who has been disappointed, and sometimes stunned, by the disastrously low standards of the current media culture in this country.  It is even worse when one sees such incompetence first hand.  Last summer, for example, I described the completely predictable media circus that surrounded the release of the Supreme Court's decision in the ACA case.  I was asked by a media outlet to be one of the idiots standing on the Court's steps, reading the decision in real time an