Dorf on Law

by Michael Dorf My latest Verdict column describes the various forms that resistance to the Supreme Court's same-sex marriage ruling is likely to take. I'll let the column speak for itself on that subject because a landmark case often raises many issues. Accordingly, in this post I'll address an issue raised by Justice Thomas's dissent--one I did not discuss in my prior critique of the dissents in Obergefell . Responding to Justice Kennedy's repeated invocation of the petitioners' right to equal dignity, Justice Thomas writes in dissent: Perhaps recognizing that these cases do not actually involve liberty as it has been understood, the majority goes to great lengths to assert that its decision will advance the “dignity” of same-sex couples. The flaw in that reasoning, of course, is that the Constitution contains no “dignity” Clause, and even if it did, the government would be incapable of bestowing dignity.  Human dignity has long been understood in

by Michael Dorf In 1972, when the Supreme Court invalidated the then-extant death penalty statutes in Furman v. Georgia ,   only two Justices--Brennan and Marshall--concluded that the death penalty is unconstitutional under all circumstances. The balance of the Court set forth criteria that would need to be satisfied for states to carry out executions and, four years later in Gregg v. Georgia   and its companion cases, the Court largely upheld the state responses. Although Justices Brennan and Marshall were often joined by other Justices in accepting claims that the death penalty was unconstitutional in particular circumstances, for a long time they were the only Justices to express the view that the death penalty is invalid in all circumstances. Justices Powell, Blackmun, and Stevens eventually changed their mind, but too late to do much good for death-sentenced petitioners. Powell told his biographer that he thought the death penalty invalid in all cases, but only after he retir

by Michael Dorf  ( cross-posted on SCOTUSblog ) In the nature of split decisions, the majority opinion makes an affirmative argument and the dissent criticizes that argument, with the majority responding, if at all, in footnotes and other asides. That pattern holds in Obergefell v. Hodges . In sometimes-soaring language, Justice Anthony Kennedy’s opinion barely addresses the pointed and occasionally nasty critique leveled in four separate dissents, perhaps leaving the impression that nothing can be said in response. That impression is false. None of the points made by the dissenters withstands critical scrutiny – not least the claim that because marriage originated as an institution to address accidental procreation by heterosexuals, a state has a rational (much less compelling) interest in forbidding gay and lesbian couples from participating in the modern institution of marriage. Still less persuasive is the dissenters’ repeated insistence that this case differs from prior marr

by Michael Dorf Justice Kennedy's opinion in Obergefell v. Hodges is a tour-de-force. I shall have a LOT to say about it--and about the dissents--over the course of the next week, but for now I will confine myself to two observations. First, in relying on both due process liberty and equal protection, Justice Kennedy undercut the familiar but often false notion that liberty and equality are enemies or even always in tension, with egalitarian ideals coming at the cost of libertarian ones. Through carefully chosen examples he shows how attention to equality informs understandings of the proper scope of liberty. (I would be untrue to my nature if I didn't add that this was precisely the argument that Professor Tribe and I set forth in our amicus brief in the case, although I am also confident that Justice Kennedy would have reached the same conclusions absent our brief.) Second, although there has been much discussion in the news lately about the longstanding roots of Just

by Eric Segall Chief Justice Roberts’ opinion for six Justices in yesterday’s huge Obamacare decision King v. Burwell was important, well-written and persuasive, but it still doesn’t make him the “Umpire-in-Chief.” If you are reading this blog, then you probably remember that during his confirmation hearings John Roberts said the following: “Judges are like umpires. Umpires don't make the rules; they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ball game to see the umpire.” In addition to the fact that only those who are very well-connected to the Court, or are willing to stand in long lines in Washington, D.C., get to actually “see” the Supreme Court, this analogy between Justices and umpires is wildly misleading. As many have pointed out before me, the Justices of the Supreme Court often do make up the rules of the game. Asking them to interpret what “due process

by Michael Dorf The opinion of Chief Justice Roberts in King v. Burwell proceeds concisely and persuasively via the following steps: (1) Read in isolation, the most natural reading of "an Exchange established by the State" as used in Section 36B of the Internal Revenue Code's provision governing the size of tax credits available for the purchase of health insurance would make such credits unavailable for individuals purchasing insurance through the federal exchange in those states that did not create their own exchanges; (2) however, statutory code sections should not be read in isolation, and given other provisions of the Affordable Care Act as well as its overall design, the language is ambiguous; and (3) accordingly, to implement rather than frustrate the manifest purpose of the law, in this provision (though not necessarily in others) "by the State" means "by the State or by the federal government acting in place of the State." Before discussi

by Neil H. Buchanan My new Verdict column, published yesterday , was in many ways an unusual exercise for me.  True, it was on the topic of Social Security, which is one of my main areas of interest.  What made it unusual, however, was that I felt the need to respond to good news by saying, "Now, don't get any ideas!"  Allow me to explain. Last week, The New York Times published a truly exceptional article describing a pleasant demographic surprise.  It turns out that the group of near-retirees and retirees currently in the 65-74 age range has beaten the odds and managed not to lose ground economically, despite the effects of the Great Recession.  This group happened to land in what one expert called "the sweet spot" of U.S. history, old enough to have qualified for defined-benefit pensions and to have bought their houses before the run-up in prices that preceded the bursting of the housing bubble in 2008.  Other than the very rich, this group is the only

by Neil H. Buchanan In my two most recent posts ( here and here ), I discussed the apparent gender imbalance on the comment board here on Dorf on Law .  I noted in passing that the apparent mix of our overall readership is about 65-35 (men-to-women), based on several sources of data that are surely imperfect but that are consistent with each other.  Today, I want to offer a few thoughts about that imbalance. Before Professor Dorf collected the data, what did I think the numbers would look like?  I think I can honestly say that I expected it to be about 50-50.  In part, this is because law students constitute our biggest group of readers, and the gender mix in law schools overall is close to balanced, with even the most skewed law schools enrolling more than 40% women.  True, this blog also has a fairly large readership of professors, who (as one of the commenters on my post last Wednesday pointed out) are still living in a 70-30 world.  But we seem to trend younger in our reader

By Michael Dorf With the Supreme Court Term winding down, this is a good time for me to issue a caution I have issued before ( here ). The flood of opinions in June and the need to wrap things up leads commentators to discuss themes in each Term of Court, but the natural unit of analysis for the work of the Supreme Court is not a Term. That's why no casebooks are organized chronologically year by year. Even if we want to think about case law in a temporal way (which can be quite sensible) the natural unit of analysis is something more on the scale of a decade or longer. With that disclaimer in mind, the juxtaposition of cases decided during the same Term or even on the very same day can provide interesting insights. And so I shall take the coincidence that the Court handed down two seemingly very different cases today to address a common issue that they raise. The first case is  Los Angeles v. Patel --by a 5-4 vote allowing a facial challenge under the Fourth Amendment and then

by Neil H. Buchanan In my Dorf on Law post last Wednesday, I wondered aloud why the people who contribute to the comment board on this blog seem to be almost all men.  I initially noted my longstanding interest in gender issues, driven in part by an undergraduate experience that featured an unusual level of gender balance in the classroom.  By contrast, the evidence is clear that all too many classrooms in U.S. universities (and especially in our law schools) are dominated by young male blowhards, reflecting a more general socialization process that leads to women too often being silenced in public forums. The most interesting question, to me, was how this process carries over from the classroom to a comment board on a policy blog like this one.  In an atmosphere that is (with extremely rare exceptions) respectful and issue-oriented, and with the number of comments per post quite low, one might imagine (or I did, at least) that the bad in-person gender imbalance of the classroom

by Eric Segall Race was all over America on Thursday. Of course, the Charleston tragedy dominated the headlines with most thoughtful folks reflecting on how someone could be so full of hate that he would kill nine innocent people in cold blood and also thinking about our gun policies and how we can prevent such massacres in the future. Shame on those who showed sympathy but suggested we shouldn’t use the incident to discuss issues of race and gun control. If not now, when? Race was also all over the Supreme Court on Thursday. The Justices ruled that Texas (yes, Texas) could refuse to issue a special license plate with a Confederate flag on it even though Texas permits all kinds of symbols and messages on its plates and this was the first time an application for such a plate was turned down. The stated rationale for the denial was that the Confederate flag could offend many Texans (you think?). The suspect in the Charleston murders had a Confederate flag on his plate. The le

by Michael Dorf Justice Breyer's majority opinion in Walker v. Texas Div., Sons of Confederate Veterans  ( SCV )   is so badly reasoned that it cannot be taken seriously at face value. After explaining why I think Justice Alito's dissent is more persuasive, I'll explore why both the majority and dissent disregarded proposals for an intermediate category of mixed government/private speech. First, a quick overview. For a substantial fee, Texas, like many states, offers "specialty" license plates. There are hundreds of off-the-rack plates expressing support for various civic organizations, causes, leisure-time activities, etc., and also the possibility of approval for a custom-designed plate. SCV applied for a specialty plate with its name and a Confederate Battle Flag logo but the relevant Texas agency rejected it after a public hearing on the ground that it would be considered offensive to many Texans. SCV sued, claiming censorship. The SCOTUS ruled 5-4 in fa

by Sherry F. Colb In my column for this week , I consider the question whether there is an ethical/moral duty for a transgender person to disclose his or her transgender status to a potential partner prior to engaging in sexual intimacy.  I present some arguments and points of view offered by a number of my colleagues (anonymized to protect the innocent) as well as some arguments of my own on both sides of the question. In this post, I want to consider an issue that arose during the course of my discussions with my colleagues as well as in conversations with friends to whom I also posed the original question.  The issue is deception in general among sexual partners.  Only one of my colleagues said that that people have an ethical duty to disclose all information that they predict would matter to a partner, no matter how "unreasonable" we might consider the partner's desire to have that information.  At the same time, all of my colleagues agreed that there is a duty t