Dorf on Law

by Diane Klein As U.S. Attorney General, Jeff Sessions has been so prominent that much of the time - including in the midst of the current immigration crisis - he has vastly overshadowed the Deputy Attorney General, Rod Rosenstein.  And of course, under ordinary circumstances, most Americans cannot name the Attorney General, much less the Deputy.  But current circumstances are not ordinary, and with Sessions having recused himself from the Russia investigation, Deputy AG Rosenstein is in charge of this extraordinarily important legal and political undertaking - one that is putting him increasingly at odds with the Republican-controlled House.  On Thursday, June 28, 2018, he was back in the spotlight, being questioned by the House Judiciary Committee - and holding up admirably.

by Neil H. Buchanan Note to readers:  Because of travel commitments, I wrote the column below (to be published today, Friday the 29th of June) two days ago, in what turned out to be the few remaining hours before Justice Kennedy announced his retirement.  (I also wrote it pre - Janus , but that predictably terrible decision would not have changed anything here.) When I wrote the column, therefore, my musings about Supreme Court departures were entirely hypothetical, and I honestly thought that the column was a bit self-indulgent because, as I put it in the second paragraph, I was simply following a stream of consciousness that had been sparked by the Travel Ban decision. Well, unhappy surprise to all of us!  With Kennedy's announcement, I considered rewriting the column, but I have decided not to do so.  Indeed, the paragraph that I wrote that begins "As an aside" (after the "confirmation equation"), regarding unexpected Supreme Court openings, is already...

by Neil H. Buchanan The early part of this week saw the political chatter turn to another meaningless sideshow over "civility" and whether it is absolutely horrible that a few Trump Administration figures have been made to feel bad about themselves by members of the public.  It seems that some Americans are becoming unwilling to apply the usual rules to so-called public servants who are willing to enable a would-be king, and even though the restaurant owner who started the latest controversy was apparently polite in the extreme, that has not stopped the right-wing outrage machine (and, of course, Donald Trump himself) from going into overdrive. As usual, Sarah Huckabee Sanders managed to tell the biggest whopper by responding to this social slight with the claim that "I always do my best to treat people, including those I disagree with, respectfully and will continue to do so."  The Washington Post 's Jennifer Rubin had the perfect, deliberately understated ...

by Michael Dorf Today's announcement that Justice Kennedy is retiring has led immediately and understandably to speculation about how the process for replacing him will play out. This strikes me as silly. The GOP has 51 votes in the Senate. Mitch McConnell will make sure that a new justice is confirmed before the midterm elections or, in the worst-case scenario for Republicans--i.e., should the confirmation somehow be delayed until after the midterms and the Democrats take the Senate--in a lame-duck session. The new justice will certainly be at least as conservative as CJ Roberts, so regardless of how this goes, the Chief Justice is now the center of the Court. Here are a few very preliminary observations:

by Michael C. Dorf Today's decision in Janus v. State, County, and Municipal Employees   was completely predictable, given that the eight-justice Court divided evenly on ideological grounds on this question; anyone who thought Justice Gorsuch would ride to the rescue of public sector unions should consider buying a certain bridge I'm selling. Yet, if the outcome was predictable, Justice Alito's reasoning for the majority is nonetheless revealing. Here I'll note the key points of contact between Janus and what I regard as the weakest argument accepted by the conservative justices in  NFIB v. Sebelius  (the Obamacare case).

by Michael C. Dorf My latest Verdict column identifies a number of silver linings in the Supreme Court's generally disheartening Travel Ban decision yesterday. In it, I discuss the majority opinion of CJ Roberts, the concurrence of Justice Kennedy, and Justice Sotomayor's dissent. I don't discuss the Thomas concurrence or the Breyer dissent. Here I want to add a brief word about the former. After listing a number of reasons why he thinks the travel ban case was an easy win for the government, Justice Thomas pens a little essay lamenting the spread of nationwide, or as he calls them, "universal," injunctions. His basic gripe is that relief going beyond the parties to a case cannot be squared with the traditional equity powers of courts.

by Michael C. Dorf Today's decision in National Institute of Family Life Advocates  (NIFLA)  v. Becerra   was ironic in at least one respect. The Court applied strict scrutiny to California's law requiring so-called crisis pregnancy centers to post information regarding abortion options because of a broad understanding of what renders a law content-based. And yet readers of the Court's opinion could be excused for thinking that the decision itself was content-based. The Court divided 5-4 on ideological grounds, with Justice Thomas writing the majority opinion for himself and the four conservatives. Yet some of the dissenters (the Court's liberal-leaning justices) are, in other contexts, more protective of free speech than some of the majority. It thus looked very much like the reason for the Court's robust protection for free speech here was the subject matter or content of the speech regulation: abortion. (Justice Kennedy is a possible exception to this observa...

by Michael C. Dorf The Supreme Court decided two merits cases today and took one extremely puzzling action via a summary order. I'll have a tiny bit to say about an antitrust ruling, before focusing on the Texas racial gerrymandering decision and the puzzling summary order (in the florist case from Washington state). The unifying theme I'll identify is taint.

by Michael Dorf I'll probably be back a bit later today with a post on one or more of the cases the SCOTUS is expected to hand down this morning. Meanwhile, the video from my debate on originalism with Prof. Randy Barnett (which I previewed here ) is now available from the Reason magazine YouTube channel. If you prefer to listen only, you can also get it as a podcast here or through iTunes. A summary can be found at the SoHo Forum website . There is a warmup act--a "libertarian comedian"--with the actual debate starting at the 12:12 mark (of the video).

By William Hausdorff Tuning Out the Media after the Diplotainment in Singapore It’s really easy to become discouraged about global politics and the state of the American experiment. Earlier this month I hit a personal low point, where I felt I was truly missing something, as I watched the US news media’s ability to reduce the US-North Korean “event” to a mixture of wishful thinking and reality TV.   One can almost forgive the vacuousness of the news coverage of President Trump’s Mighty Handshake with Kim Jong-Un, since the bar was set so ominously low:   just a few months earlier Trump and Kim were publicly comparing missile sizes.   But other than a rhetorical cease-fire, what kind of deal could have possibly been expected with a US leader who revels in contradicting himself, who surrounds himself with a war-mongering Secretary of State and National Security Advisor that have each spoken about militarily overthrowing the North Korean government, and who are...

by Michael Dorf In today's ruling in Carpenter v. United States , the Court, in an opinion by Chief Justice Roberts joined by the Court's four liberal-leaning justices, finds that collection of cell phone tower location data from a mobile phone provider constitutes a search within the meaning of the Fourth Amendment, thus presumptively requiring probable cause and (absent exigent circumstances) a warrant. Here I want to note what looks like a glaring inconsistency between Justice Kennedy's Carpenter dissent and his approach to the constitutional right to privacy in other contexts.

by Michael C. Dorf Today's decision in South Dakota v. Wayfair, Inc.  is defensible on the merits, but Justice Kennedy's majority opinion inadequately responds to the key objection by Chief Justice Roberts (for himself and Justices Breyer, Sotomayor, and Kagan). To see why will require a bit of backstory on that most delightful topic in the constitutional law corpus: the Dormant Commerce Clause (DCC).

by Neil H. Buchanan Fifteen days ago, I left the United States to attend academic engagements in Toronto and Vienna .  In that time, there have been at least four enormous political stories, each of which erased all discussion of the previous enormous story: (1) Donald Trump's damaging, childish stunts at the G-7 meeting in Quebec, (2) Trump's meeting with Kim Jong-Un, which elevated North Korea's international status and downplayed Kim's brutal dictatorship, (3) the Inspector General's report that undercut every Trump talking point about the Russia investigation (but that Trump and his people are predictably lying about), and now (4) the disastrous human rights crisis that Trump's (in)Justice Department has created by separating children from their parents at the U.S. border. There have, of course, also been big stories about various Supreme Court decisions and other issues.  Before the next big outrage comes along (most likely when the Supreme Cou...

by Sherry F. Colb My column for this week considers the recent case of  Byrd v. United States . The US Supreme Court held there that if police unreasonably search a rental car, then the driver of that car who is in lawful possession of it has standing to object to the admission of evidence found during the search. In other words, you do not need to be the renter or have your name on the rental agreement list of authorized drivers in order to enjoy a reasonable expectation of privacy in the concealed portions of the car, such as the trunk. I explain in my column that this outcome is positive for two reasons: it takes Fourth Amendment privacy doctrine away from pure property concepts, and it broadens (or at least fails to narrow) standing so as to permit more people to hold police accountable for Fourth Amendment violations by excluding evidence obtained as a result. In this post, I want to suggest that not only is Fourth Amendment standing doctrine a misguided endeavor, for rea...

by Neil H. Buchanan One of the mixed pleasures of being an academic is the opportunity to teach and conduct research at other universities, often in foreign countries.  Although some outsiders might view these as little more than junkets, the work is not easy by academic standards -- that is, it is even more difficult to explain U.S. tax law to foreign students than to explain it to U.S. students -- and the travel itself can become a grind. I am, of course, fully aware that these are the quintessence of what we now think of as First-World Problems, but even at best the "working" part of these supposed working vacations does feel like something short of leisure.  In any case, such visits achieve both scholarly and institutional goals, with research being advanced by collaborating with foreign scholars in person and with our universities anxious to have us "fly the flag" elsewhere to enhance reputations. This is all a long way of explaining that I am currently b...

by Michael C. Dorf This is shaping up as a real nothing of a Supreme Court Term. Two weeks ago, the Court ducked the important questions in Masterpiece Cakeshop and Hughes v. United States . Today the Court ducked the question whether claims challenging partisan gerrymandering present non-justiciable political questions and if not, how to adjudicate them. In a brief per curiam in Benisek v. Lamone , the Court affirmed the district court's denial of preliminary injunctive relief in Republicans' challenge to Maryland gerrymandering, relying entirely on the technical details of the standard for a preliminary injunction. Meanwhile, in an opinion by CJ Roberts for a more or less unanimous Court, the justices declined to say anything about the justiciability or merits of Democrats' challenge to Wisconsin gerrymandering in Gill v. Whitford , resolving the case on the grounds that the particular plaintiffs had failed to prove the elements of standing at trial. Not all non-dec...

by Sherry F. Colb Like other movements for change, the animal rights movement hosts its share of internal battles. Ethical vegans disagree, for example, on the Impossible Burger, a plant-based burger with the taste and texture of a hamburger made of cow flesh. Some support it because it diverts demand from the slaughterhouse, while others oppose it because one of its ingredients was tested on animals. Vegans also part ways on whether a person who eats a plant-based diet to achieve optimal health should be considered a vegan at all. Disagreements abound over whether laws regulating the treatment of animals in agriculture and laboratories are generally a positive intervention or an empty promise that impedes actual progress toward the abolition of animal exploitation. When it comes to determining what the best steps are for ethical vegans, consensus is the exception rather than the rule. It was therefore unsurprising to find that ethical vegans disagreed over how to react to the de...

By Sherry F. Colb Recently, Samantha Bee of Full Frontal referred to Ivanka Trump, the President's daughter, as a "feckless c---." Bee became the subject of immediate condemnation, especially from the right. Not long before that, ABC had terminated Roseann Barr's television show because she had sent out a racist tweet about Valerie Jarrett, former advisor to President Obama, suggesting that Jarrett was the offspring of Planet of the Apes and the Muslim Brotherhood. For this post, I would like to explore how critical we should be of Samantha Bee for using the C word against Ivanka Trump. First, though, I want to briefly discuss two other issues. One is whether what Bee did was comparable to what Barr did. And the second is what it means when someone compares an African American woman to an ape.

by Neil H. Buchanan Two days ago, I wrote in amazement about the simplemindedly literalist arguments that Donald Trump's defenders have been pushing (with straight faces) to justify his claims that he can pardon anyone, including himself.  I then offered two theories that were no crazier than those that Trump's minions have been pushing, including a move that could allow Trump to prevent his own impeachment (and then pardon himself for doing so). I was somewhat tempted not to say anything about those cockamamie theories, because I did not want to give Trump's loyalists any ideas.  I then realized that, even if they were to read what I wrote here on Dorf on Law (a far-fetched idea, at best), they have repeatedly proved themselves capable of coming up with even more off-the-wall theories on their own than I could ever imagine.  My column was thus an exercise in "fun" in the sense that it is somehow amusing to think about how people can convince themselves to s...

By Michael Dorf In my latest Verdict column , I recap my (side of the) debate on originalism with Prof. Randy Barnett Monday night at the Soho Forum. (No video available yet; I'll update when there is.) Regular readers of this blog and my other work will not be especially surprised by the core of my argument. So-called public-meaning originalism unjustifiably claims the supposed virtue of constraint that intentions-and-expectations originalism claimed (justifiably or not), while supposedly avoiding the pitfalls of intentions-and-expectations originalism, but in fact public-meaning originalism is functionally equivalent to living Constitutionalism; meanwhile, the respectability that scholars like Prof. Barnett bring to the term "originalism" is systematically misused and abused by judges and justices who talk the public-meaning-originalism talk but walk the intentions-and-expectations-originalism walk. Thus, I conclude with a quotation from Justice Scalia's disse...

by Neil H. Buchanan One of the most important recent degradations of our constitutional order has arrived in the form of Donald Trump's claim that he can pardon himself.  That threat is even more worrisome in light of the rapid acquiescence by Trump's enablers in agreeing with his outlandish claim. This acquiescence is not, moreover, limited to the spineless Republicans in Congress.  In The Washington Post , for example, a Stanford Law School professor (who once had a reputation as a principled conservative) ran through the suddenly-standard Trumpist excuses to say that Trump is "not wrong" about self-pardons. This is nonsense.  People who claim that the legal text is clear and that Trump can get away with anything that is not explicitly ruled out by the Constitution are wrong.  They opportunistically make exceptions when necessary, and then they drop the exceptions when convenient.  Literalism is, in the end, a useful starting point that is all too easil...

by Michael Dorf Today's ruling in Husted v. A. Philip Randolph Institute divides the Court 5-4, with the five Republican-appointed justices voting to sustain, and the four Democratic-appointed justices voting to invalidate Ohio's procedure for--depending on your priors--updating or purging the voter rolls. There is, to be sure, a genuinely difficult question of statutory interpretation that divides the justices, but one would have to be incredibly naive to think that that is where the real action lies.

by Michael Dorf [**Updated] Tonight I'll be debating Georgetown Law Professor Randy Barnett at the Soho Forum . I'll be arguing against the following resolution: "The U..S. Constitution should be interpreted and applied according to ​the original meaning communicated to the public by the words of the text." The event is sold out, but I believe it will be streaming live via the Reason Magazine FB page . In any event, I'll post recorded video back here as soon as it's available. ( Video is here .   Podcast is here .) Meanwhile I'm going to depart from my custom of previewing my remarks when I'm on panels in order to briefly say something "meta" about tonight's debate. For the gist of my substantive position, readers can consult any number of my prior blog posts (such as this one ) and academic articles (such as this one ) discussing originalism.

By David Cruz   ( cross-posted with some updates from Cruz Lines ) “Oh baby refrain from breaking my heart” In what appears to be the first judicial opinion to cite the Supreme Court’s ruling in Masterpiece Cakeshop v. Colorado Civil Rights Commission , an Arizona appeals court has rejected a claim by a hand-painted and hand-lettered stationery business and its Christian owners for a religious exemption from Phoenix’s law forbidding sexual orientation discrimination.  Decided three days after Masterpiece Cakeshop , Brush & Nib Studio v City of Phoenix  rejected the Arizona state constitutional and statutory free speech and religion claims brought by the same Christian right advocacy organization – the Alliance Defending Freedom (“ADF”) – that represented the Masterpiece Cakeshop.  This time, however, there was not even colorable hostility toward the plaintiff owners’ religion, and ADF lost.

by Neil H. Buchanan What did Barack Obama do during the 2016 election?  What I recall most clearly is that he tried (rather late in the game) to boost turnout among African-American voters for Hillary Clinton, either failing entirely or at least falling short.  What did he not do?  Interesting question. Quoting from an extremely long piece in The New York Times about James Comey's impact on the election, Paul Waldman notes that, "at one point, then-FBI Director James B. Comey suggested that he could write an op-ed explaining what Russia was doing, but Obama 'replied that going public would play right into Russia’s hands by sowing doubts about the election’s legitimacy.'" That decision can be defended on a number of grounds, not only in the way that Obama justified inaction but also by surmising that Republicans would have immediately spun any effort on Obama's part as illegitimate meddling by the sitting president.  We do know that Senate Majority L...

by Neil H. Buchanan Part of Donald Trump's strategy for survival, as even his own strategists now admit, is to ramp up the anger among his base by trying to make them think that everyone who is against Trump is dishonest and corrupt.  That strategy in turn is based in large part on portraying the non-Trump world -- not just the media and academia but anyone who disagrees with Trump -- as part of an alien force that hates Trump's supporters. This move is actually rather easy to pull off for Trump, given how aggressively this sense of grievance has been pushed on the right for many years.  Indeed, when I wrote a Verdict column back in May of 2015 discussing " The Return of the Paranoid Style in American Politics ," I did not mention Trump at all.  The most obvious reason for that omission was that Trump was not yet seen as a serious threat, but the point is that this right-wing sense of paranoid isolation had long since become obvious even when the "normal...

By Eric Segall From time to time, Mike allows me the privilege of  using this space to rant about non-constitutional and non-legal matters. This is one of those times, except for a sentence or two at the end.

by Sherry F. Colb In my column for this week , I discuss the Irish vote on abortion and consider how all of us might  empathize better with those on the other side of this issue as well as the related issue of animal rights. In this post, I want to consider an empathy question regarding abortion: why do (some) people empathize with embryos and fetuses? Why, in other words, does anyone want the law to protect the rights of unborn humans?

by Michael Dorf Yesterday's SCOTUS decision in Masterpiece Cakeshop case did not decide the main issue that made it worth following: whether a baker has a constitutional right of free speech to refuse to make a wedding-style cake for a same-sex couple in the teeth of a state public accommodations law. Instead, as I discussed here , the Court resolved the case based on a rather far-fetched reading of the record in the Colorado Civil Rights Commission, attributing anti-religious bias to one or two commissioners based on statements that, all things considered, are best read not to express such bias. I have my doubts about whether all seven justices in the Masterpiece  majority (or even five of them) actually thought this was the best way to resolve the case. It strikes me as more likely that this was a compromise ruling on relatively narrow case-specific grounds, reflecting an inability of the Court to produce a definitive ruling just yet. Or maybe not. The Supreme Court has bee...

by Michael Dorf Today's SCOTUS decision in Masterpiece Cakeshop v. Colorado Civil Rights Comm'n is erroneously but predictably being described in the press as a victory for religious merchants who want to deny service to gay couples. For example, this instant NY Times story is correctly but misleadingly titled "Supreme Court Sides With Baker Who Turned Away Gay Couple." Worse, the original version of the story (which has now been updated) described the free speech argument made by baker Jack Phillips in a way that gave the impression that the SCOTUS had accepted the free speech claim. It did not. Justice Kennedy's opinion for the Court specifically acknowledges the difficulty presented by the free speech claim. Absent a showing that Phillips was asked to create an articulate pro-same-sex-marriage message on the cake, Kennedy notes, a free-speech ruling in favor of Masterpiece/Phillips would mean that "a long list of persons who provide goods and service...

by Neil H. Buchanan Even before Roseanne Barr's spectacular flame-out this week, I had been planning to write a piece about the unfairness purportedly suffered by entertainers who must navigate the ever-changing terrain of audience expectations.  With Barr's bizarre career suicide and after-death whining about her supposedly unfair treatment at the hands of Hollywood liberals, the timing could not be better. A bit more than a month ago, I wrote a series of columns ( one on Verdict and two here on Dorf on Law) in which I discussed the controversies that were then brewing about the successful reboot of Barr's 1990's TV sitcom as well as the offensive response by the creators of "The Simpsons" to complaints about their offensive "brownface" stereotyping of South Asians through the character Apu. One of my themes in those columns was that entertainers should shut up about their audiences' supposed touchiness and try to write better jokes....