Dorf on Law

By Eric Segall This year marks the 25 th anniversary of Justice Clarence Thomas serving on the United States Supreme Court. Ever since Anita Hill came forward with allegations that he sexually harassed her, the second African-American jurist to sit on the Court has been perhaps this country’s most polarizing governmental official. Although he is a darling of the right for his strong statements about the importance of text and history to constitutional interpretation, his general embrace of conservative values, and his willingness to overturn precedents that the right disfavors, he is generally despised by the left for his consistent opposition to progressive goals such as the legalization of same-sex marriage, the separation of church and state, affirmative action, and federal regulation of our national economy. Justice Thomas’ controversial career is perhaps best symbolized by the failure of the recently opened Museum of African-American History to devote an exhibit to his caree

by Michael Dorf Among the law nerds in whose circles I move, there is a developing view that the public will misunderstand the trans school restroom case of  Gloucester County School Board v. G.G , in which the Supreme Court just granted cert. In the law-nerdy view, the public will view the case as fundamentally about trans equality, but in fact it's mostly about administrative law. In this post, I'll explore the possibility that the uninformed public are mostly right and the law nerds are mostly wrong. If so, then the administrative deference issue is secondary: the core question is whether anti-trans discrimination is sex discrimination. I'll start with as brief a recap as possible. G.G. is a transgender boy who was denied access to the boys' restroom in his high school. The school board eventually offered three single-user restrooms, but G.G. was unhappy with that accommodation, regarding it as stigmatizing. G.G. sued under the Equal Protection Clause and Title IX

by Michael Dorf In a recent article in the University of Chicago Law Review, Duke Law Professors Joseph Blocher and Darrell Miller discuss how the law might treat incidental burdens on Second Amendment rights. A law imposes a direct burden on a right when the law targets the exercise of the right. By contrast, an incidental burden arises when a law applies to a broad category of conduct--much of it constitutionally regulable--but incidentally infringes a right. For example, a regulation forbidding camping in national parks except in designated campgrounds is unobjectionable as applied to someone who sets up a tent directly adjacent to Old Faithful, but raises at least a prima facie issue under the First Amendment as applied to people spending the night in tents on the National Mall in Washington DC to protest homelessness policy. (The Supreme Court nonetheless upheld the law as applied to the homelessness protest in a 1984 case , applying what was essentially intermediate scrutiny

by Neil H. Buchanan If there is one narrative that has taken root during the long course of the 2016 U.S. presidential campaign, it is the idea that both Hillary Clinton and Donald Trump are widely loathed.  It has become a staple not just of political commentaries but of late-night comedy to point to polls that seem to show that both candidates are historically unpopular. But a factually true statement can be still be grossly misleading and damaging.  Lazily pointing to some poll numbers to attack both Clinton and Trump is apparently good sport.  Unfortunately, it also distorts the way that people think about the candidates.  Even worse, it allows voters to say, "Well, I don't want to make a choice, because they're both so bad.  Everybody thinks so."  It has thus become a self-reinforcing distortion. Much of my discussion here will involve criticizing the use of public opinion polls, so let me first clear up a few possible misunderstandings.  Most importantly,

by Neil H. Buchanan When all else fails, conservatives accuse their opponents of "political correctness."  This has been going on for thirty years or so, which means that Donald Trump's use of the anti-PC attack line is one of the ways in which he has ingratiated himself with his Republican base. Professor Dorf recently contrasted two theories of Trump's rise in U.S. politics: Trump as truth serum , in which Trump says bluntly what Republicans have been saying obliquely for years; or Trump exceptionalism , in which Trump is unlike anything that we have seen before. The long history of right-wingers' screaming about political correctness indicates that this is yet another way in which Trump is anything but a deviation from the Republicans' norm.  Indeed, Trump is not even out of the ordinary in degree or kind.  For decades, conservatives have been shouting, "Stop being so PC!"  Trump is simply unexceptional, at least on this score. I will s

by Michael Dorf On Saturday Donald Trump gave a speech at Gettysburg that was billed as a major policy address in which he announced that after the election he would bring defamation lawsuits against each of the eleven women who have recently come forward to state that Trump made unwanted sexual advances against them. Fittingly, the editors of the NY Times ran the story under the headline "Donald Trump Pledges to 'Heal Divisions' (and Sue His Accusers)."   By chance, that evening I saw a film about another instance of denial and litigation. The parallels inspire this post. Denial   dramatizes the lawsuit brought by Holocaust denier David Irving against historian Deborah Lipstadt for having called him an antisemitic and racist liar in her book on Holocaust denial. Because English libel law allows recovery in circumstances where U.S. law would not, Irving's suit went to trial. The burden fell on Lipstadt and her lawyers to prove that Irving deliberately mischara

by Michael Dorf On Tuesday night last week, I gave a lecture at Johns Hopkins University with the title Does the Dead Constitution Have a Future? Reflections on the Legacy of Justice Antonin Scalia . After exploring some deficiencies of various versions of originalism, I advanced the thesis that despite its flaws, originalism remains an appealing form of justificatory rhetoric because it sells itself as a brand of formalism and the general public are substantially more formalist than warranted by what over a century of legal realism teaches about how courts in fact decide cases. I also explained that originalism has been a formalism of the right, but that formalisms of the left (including liberal originalism) are also available. I offered evidence of the grip of formalism on the public from a variety of sources, including Supreme Court confirmation hearings. Rarely does one have the opportunity to test an academic thesis immediately after propounding it, but I was given that opport

by William P. Hausdorff The scary prospect of a close election Clinton remains favored in almost all poll summaries, though individual polls still come up with surprisingly narrow margins.   But the pollsters’ emphasis on likelihood of winning, regardless of the electoral vote gap, may set American democracy up for a fall: a tight election, combined with a House and Senate possibly both still Republican may be one of the worst situations.   Under that scenario, Trump’s allegations of rigging and lack of legitimacy could run rampant, and completely discredit democratic institutions under an endless series of Congressional investigations.   What accounts for the continuing tightness in the polls?   I once conceived of an amusing evening parlor game with friends:   try to imagine what Trump could possibly say or do that would finally cause a significant portion of his supporters to bail.   As untreated sewage continues to flow freely from Donald Trump’s mouth, including explic