Dorf on Law

by Michael Dorf In this podcast , I discuss the big cases, the trends, and the near-term future of the Supreme Court with National Constitution Center President Jeffrey Rosen (host) and Carrie Severino of the Judicial Crisis Network. We agree on some points and disagree on others. Discuss among yourselves.

by Sherry F. Colb In my V erdict column for this week , I discuss the case of Utah v. Strieff . The Court held in Strieff  that although a police officer had stopped a suspect without any reasonable suspicion (as the parties conceded), and this stop was what led the officer to ask for identification and ultimately to learn of an outstanding arrest warrant against the suspect, the evidence found in the course of the search incident to the arrest (on the basis of the warrant) is properly admissible under the "attenuation doctrine."  The Court found that the pre-existing arrest warrant for the suspect constituted an "intervening circumstance" that attenuated the causal link between the initial illegality and the discovery of the evidence on the suspect. In my column, I criticize this opinion but in particular, I take issue with a line in the decision in which the Court hints at the possibility that the initial stop, performed without any reasonable suspicion, might...

 by Michael Dorf My latest Verdict column tackles the procedural issues in Whole Woman's Health v. Hellerstedt . The dissenters say that the procedural obstacles to the plaintiffs' case are so great that the majority's decision to reach the merits can only be explained by a set of special relaxed procedural rules for plaintiffs challenging abortion regulations. I explain why this claim is false. I chose to write about the procedural aspects of the case because I had already opined about the substance, both to reporters (e.g., here ) and in my own contribution to a SCOTUSblog symposium. I'm sure I'll have more to say at a later point, but for now I'll just republish the SCOTUSblog piece. Here it is: The Wages of Guerrilla Warfare Against Abortion During the oral argument last year in Glossip v. Gross , Justice Samuel Alito accused the lawyers arguing that Oklahoma’s lethal injection protocol was unconstitutional of trying to take advantage of a “gueri...

by Neil H. Buchanan Why, really, is Donald Trump still running for president?  Many commentators have opined that he surprised himself with his success, that he was originally following the same strategy as the other no-chance candidates who were angling for something other than the presidency -- a cabinet position, a slot on Fox News, more book sales and higher speaking fees, and so on. In this telling, path dependence now finds Trump almost a victim of his own unexpected momentum.  He might well know, deep inside his addled brain, that he has no business being president.  In fact, he might not really want the job, but he is too proud now to walk away.  Besides, his ego will not allow him to give up on pursuing the greatest personal validation of all, becoming the leader of the most powerful nation on earth. All of that might well be true, but if even if it is, the story is highly incomplete.  There is no good theory explaining why Trump says the outrageo...

By Eric Segall The Supreme Court of the United States wrestled with fascinating and at times even bizarre questions this term: Could Texas pass non-medically necessary laws regulating many of its abortion clinics out of existence (short and easy answer, no ). Could Texas use race as a "factor of a factor of a factor" for roughly a quarter of its entering class when it previously used whiteness as a 100% factor to exclude all non-white students (hard and complex answer, yes ). Could President Obama use the historically large deportation discretion of the Executive Branch to allow non-citizen parents of lawful children to openly perform jobs Americans refuse to do (Court was tied so for now, no ). Does the free speech clause of the First Amendment prohibit over twenty states from requiring its workers to pay partial union dues to avoid freeloader problems (Court was tied so for now, no ). And, in the most ridiculous Supreme Court case in a long time (well since last term...

By Anil Kalhan It may be tempting to regard the Supreme Court’s deadlocked decision last week in United States v. Texas , the Republican lawsuit challenging the Obama administration’s 2014 immigration initiatives, as something of a “ non-decision ” or “ punt .” The Court’s one-line opinion—which, by convention , affirms the lower court’s judgment but has no further precedential effect—does not address any of the substantive issues presented in the case. Nor does the opinion itself disclose how any of the justices voted on any of the questions before them, although there seems little mystery as to which justices were likely on each side of the decision. And especially since the case came to the Supreme Court at the preliminary injunction stage, the litigation may be far from over —making it even more plausible to understand the Court’s decision as one that defers ultimate resolution of those issues. At the same time, to characterize the Court’s decision as merely an “inability to de...

by Neil H. Buchanan Although polls indicated that the British referendum on leaving the European Union was likely to be a fairly close vote, somehow it did not seem possible that the vote could go the wrong way.  Maybe the surprisingly lopsided defeat of the 2014 Scottish independence vote made people too comfortable.  Maybe it was the sense that considerations of actual self-interest would somehow dominate paranoia and chauvinistic fantasies.  In any case, we wake up today to the shocking reality that the UK has actually voted to leave the EU. My first thought upon reading the news -- that is, my first coherent, not oh-my-God-what's-happening, thought -- was that this is the most potent example yet that my biggest fear might be coming true, that the Great Recession and its aftermath have set in motion what could well become the disintegration of liberal democracy in the world.  Yes, that sounds like apocalyptic overstatement.  It now looks more plausible th...

by Michael Dorf At the end of a Supreme Court term, the law clerks put on a show in which they depict the justices, gently (or not so gently) poking fun at their bosses' personal foibles and jurisprudence. These are not public events and so what we know about them comes from leaks from a very unleaky institution. Nevertheless, a story is told that one year the law clerk portraying Justice Sandra Day O'Connor sang a song to the tune of the Rolling Stones' "Beast of Burden" with the lyrics "I've never seen an undue burden." The idea was that although Justice O'Connor's concurring and dissenting opinions in abortion cases had suggested that abortion restrictions would be invalid if they constituted an "undue burden," she had voted to uphold every abortion restriction to come before her. And that was true, until 1992 when she joined with fellow Republican-appointed Justices Anthony Kennedy and David Souter to co-author an opinion (joi...

By Sherry F. Colb In my Verdict column for this week , I discuss the Supreme Court case of Montgomery v. Louisiana . Montgomery  held that the case of Miller v. Alabama , which held that mandatory life without parole ("LWOP"), when imposed on juvenile offenders, violates the Eighth Amendment ban on cruel and unusual punishments, must be applied retroactively on state collateral review to cases in which the convictions at issue have already become final.  This meant, in Montgomery  itself, that a 69-year-old man who was sentenced mandatorily to life without parole about 50 years earlier should have been given the opportunity on state collateral review, after Miller  was decided, to challenge his sentence under Miller  in state court.  In my column, I suggest that the way in which the Court reaches its conclusion--by deeming Miller a case announcing a substantive rather than a procedural rule--indicates the likelihood that the Court will soon see fit to fi...

by Neil H. Buchanan What is it about Hillary Clinton that bothers Republicans so much?  Even more than her husband or President Obama -- indeed, more than any politician within anyone's memory -- Clinton evokes a seething, blind hatred from those on the opposite side of the aisle. This is especially difficult to understand in light of Clinton's notably successful efforts at bipartisanship while she was in the Senate, as well as her history of center-right policy views that positioned her very much on the right end of Bill Clinton's triangulating administration.  That she has more recently adopted some center-left views is, I am sure, an unpleasant development from the standpoint of Republicans, but their hatred of Hillary Clinton long predates any of that. Last week, I wrote about Clinton's "high negatives" in polls with voters and how those poll results are erroneously likened to people's much more negative views of Donald Trump.  It has become an...

By Michael Dorf In Friday's post , I asked what the prospects are for Bernie Sanders using such leverage as he has to move Hillary Clinton closer to the policy positions he favors. I concluded that on most issues, Clinton finds herself in the unusual position of being able to move to the left without harming her standing with general election voters. In addition to seeking policy concessions, the Sanders campaign has also indicated that it would like to see reforms in the way that convention delegates are selected in future nominating contests. To be sure, Sanders has been inconsistent these issues. Early in the season, his campaign complained about the role played by super-delegates because there was a chance that Sanders would win more pledged delegates but end up losing the nomination due to super-delegate support for Clinton. More recently, Sanders suggested that despite trailing Clinton in pledged delegates, he should get the nomination because super-delegates should switc...

by Michael Dorf Although Bernie Sanders has not officially endorsed Hillary Clinton, his recent statements clearly indicate that he understands that she will be the Democratic nominee. Nonetheless, coming into the convention with a large number of delegates, Sanders wants to use his leverage to influence the general election campaign, how Clinton governs if elected, and the rules for future presidential elections. In this post, I'll explore questions of policy. In Part 2 on Monday, I'll tackle the process questions for future presidential nominations. In some sense, what we are now facing is a very standard scenario. A candidate who is farther to the left than the nominee (or to the right when we're talking about the GOP) hopes to use whatever leverage he has to pull the nominee closer to his position; the nominee wants to give enough to the runner-up to appeal to the runner-up's primary supporters, without moving so far from the center as to undermine her ability t...