Dorf on Law

by Sherry F. Colb Have you ever seen an anti-abortion sign or ad or video? Did it contain a picture of an embryo or fetus? If it did, was the fetus relatively far along its path to forty weeks gestation? I am betting that it was. In my latest Verdict column , I discuss the question whether opposition to abortion can be feminist. In the course of that discussion, I talk about a video in which a doctor who says he has performed over twelve hundred abortions shows the viewer what a D&E (Dilation and Evacuation) looks like. At the end of the video, the doctor surprises us by announcing that he has stopped killing babies for money. I was not surprised by this announcement, however, because he used various words and expressions that demonstrated, perhaps inadvertently, that he is part of the pro-life movement.  He called the person who performs the abortion an "abortionist" (which is a little like calling a banker who happens to be Jewish a "Shylock"), and he rep...

by Diane Klein Change is afoot in official U.S. policy towards lesbian, gay, and bisexual foreign diplomats and international organization employees serving in the United States.  With so much attention rightly being paid to the crisis at the border, caused by the Trump Administration's cruel and shameful family separation and border control policies, it's understandable that another family separation policy - this one directed at a much more "elite" group - has escaped our notice.  But its toxic blend of racism, xenophobia, and homophobia makes it an unmistakably Trumpian hat trick. The latest change in policy is signaled by a letter sent to at least one U.N. organization on July 20, 2018, published here for what is believed to be the first time.  The letter is not yet embodied in a  Diplomatic Note , the official form of communication between the U.S. government and foreign governments, although it is similar in form.  The upshot of the letter is that lif...

By Eric Segall On Tuesday, the Ninth Circuit Court of Appeals invalidated Hawaii's requirement that people receive a license before openly carrying a gun in public. This aggressive act of judicial review might be reviewed by the Supreme Court, especially if Brett Kavanaugh is confirmed as a Justice. The Supreme Court has not reviewed a Second Amendment case since 2010, but as I argued here , it is likely the Court will return to this area of law in the near future now that Justice Kennedy has retired. Here are ten truths about the Second Amendment.

by Neil H. Buchanan There is no question that Brett Kavanaugh's elevation to the Supreme Court would cause a catastrophic change in American jurisprudence.  Indeed, the same can be said of anyone whom Donald Trump might nominate to fill the retiring Justice Anthony Kennedy's seat.  In that context, I was happy last week to receive a letter being circulated by some law professors in opposition to Kavanaugh's nomination, and then to see that letter reproduced as a guest post on this blog a few days ago. The letter was styled as an appeal to Republican Senators Susan Collins and Lisa Murkowski, both of whom have records suggesting support for Roe v. Wade , which any Trump nominee would vote to overturn.  Writing such a letter is always difficult, however, because it will almost invariably include particulars that might not be germane or necessary to the point but that will put off potential signers.  In this case, I found myself unpleasantly surprised by a negativ...

by Michael Dorf In a couple of recent essays, I explored avenues by which liberals might be able to limit the damage in the coming era of reactionary Supreme Court jurisprudence. Borrowing a term coined by Mark Tushnet , I proposed reinvigorating "defensive crouch liberal constitutionalism." Part 1 (which appeared both on Dorf on Law and on Take Care )   explored opportunities to make conservative arguments based on original meaning with a focus on the emergence of a Fourth Amendment jurisprudence keyed to property more than privacy. Part 2 (which also appeared both on Dorf on Law and on Take Care )   described how, in a post- Roe v. Wade future, Justice Clarence Thomas might cast a decisive fifth vote to invalidate a federal abortion ban based on his view of the limits of the Commerce Clause. In an essay on the Volokh Conspiracy on Monday, Ilya Somin added an important caveat to that last point: As Justice Thomas has previously made clear, he will only c...

by Neil H. Buchanan Ten years ago today, in a column here on Dorf on Law titled "Meat, Dairy, Psychology, Law, Economics," I described why I had decided to become a vegan.  Every year since then, in what I have taken to calling my veganniversary columns, I have written a followup column on this topic.  (See 2017 , 2016 , 2015 , 2014 , 2013 , 2012 , 2011 , 2010 , 2009 , and the original from 2008 , along with a second column a week later). My columns over the years have covered a wide variety of topics, sometimes simply offering updates on practical matters that vegans face in the non-vegan world but other times using veganism as a lens through which to view other issues (for example, my column last year discussing hipsters and veganism).  Today, I will do a bit of both, offering some quick thoughts about the practicalities of being a vegan before turning to a discussion of how vegan issues arise in more general political debates. The short version of this column ...

by guest bloggers David S. Cohen , Jessie Hill , Maya Manian , Jessica Silbey , and Mary Ziegler Upon Brett Kavanaugh's nomination to the U.S. Supreme Court, the five of us observed the immediate flurry of academic commentary and predictable speculation about the fate of Roe v. Wade  under a newly-composed Supreme Court.  While participating in academic discussion and analysis is a key part of our jobs as law professors, we were also collectively struck by the concrete reality of the threat to forty-five years of jurisprudence protecting the right to choose.  We wanted to take action, and we settled on a strategy of writing directly to Senators Susan Collins and Lisa Murkowski - two Republican Senators who are pro-choice and whose votes are critical to Kavanaugh's confirmation in a Senate that is divided 50-49.  We wanted to make clear to those Senators the extent of the risk to Roe v. Wade , as well as the consequences of overruling Roe - not just for women in the...

by Diane Klein On Friday, July 20, 2018, we learned what few of us could have been surprised to hear: that former Trump personal attorney Michael Cohen taped conversations he had with Donald Trump, including pre-election conversations about payments made to Karen MacDougal , the former Playboy Bunny with whom Trump had a 10-month affair in 2006.  This seems likely to set off yet another "publicity tour" by attorney-commentator Michael Avenatti , whose representation of adult-film actress Stephanie Clifford (aka "Stormy Daniels"), has been a thorn in Trump's side since spring 2018 - and who predicted the existence and release of these tapes on May 30, 2018.  In the aftermath of the raid on Cohen's office, as far back as April, 2018, there was speculation about such recordings, but the Washington Post  and others expressed skepticism about whether any such recordings would include Trump.

by Michael Dorf  (cross-posted on Take Care Blog ) If the Senate confirms Judge Brett Kavanaugh to replace Justice Anthony Kennedy, the Supreme Court will almost certainly move to the right on a range of issues, most prominently abortion, where Kennedy wrote or joined key decisions upholding what he and two of his colleagues once called “the central holding” of Roe v. Wade . The post-Kennedy Court will cut back on the federal constitutional right to abortion and could well eliminate it entirely. What then? Public discussion of a post- Roe future has assumed that the issue would “go back to the states.” Champions of abortion rights would be disappointed but not utterly defeated, as efforts might then focus on making transportation available from anti-abortion states to states where it is legal. The US would look much like Ireland prior to its recent passage of a referendum liberalizing abortion regulation. Just as Irish women seeking abortions went to England, so women from ...

by Neil H. Buchanan It did not even take eleven months for Donald Trump to go from the Charlottesville self-revealing crisis to the Helsinki self-revealing crisis.  True, he has had plenty of crises in between, most of which have also in one way or another revealed his true self -- perhaps most prominently his putting-children-in-cages-and-lying-about-every-aspect-of-it display of abject cruelty that is still ongoing, but also including his decisions to fire and humiliate staff, withdraw from the Iran nuclear deal with no alternative in place, insult and threaten democratic allies, unconditionally befriend North Korea's murderous dictator, declare victory in the War on Poverty as an excuse to inflict further harm on poor people, and on and on and on -- but there is something about his embrace of white supremacists and his even tighter embrace of Vladimir Putin that sets these two crises apart. One way to know that these crises are different is simply by watching how flustered R...

by Sherry F. Colb In my Verdict column this week, I discuss the case of Collins v. Virginia . In it, the Supreme Court recently held that if police want to search a vehicle located within the curtilage of a home, the Fourth Amendment requires them to get a search warrant. This answered an open question about the scope of the "automobile exception" to the warrant requirement, which generally allows police to search a car based on probable cause alone. What made this case different was the fact that a police officer had had to walk across a driveway to reach the vehicle and that walk included an area that he would not have had to cross to get to the front door. In this post, I want to focus on a different sort of property that police sometimes disturb in the course of carrying out searches and seizures in and around a person's home. That property is canis lupus familiaris , or the dog.

by Neil H. Buchanan The last 24 hours have been truly astonishing.  A few days ago, I had dreamed up the title of this column, "How Bad Will Things Become?" because I intended to write about how extreme the new Supreme Court is likely to be, far beyond what most commentators have yet realized (or, if they have realized it, have been willing to articulate).  But then the Trump-Putin press conference happened, and I am truly at a loss. Because legal commentary is the avocation for which I am actually qualified, I will go ahead and write some of what I had planned to write today.  But before I do, I can only say ... Holy freakin' hell!!  What is going on?  Donald Trump stood next to the man who helped him steal the 2016 presidential election and, as a former CIA Director put it , made a series of unhinged statements that exceeded the bar for high crimes and misdemeanors and were "nothing short of treasonous." To be clear, the offenses in the Constitution tha...

by Sherry F. Colb The New York Times recently published a letter that I wrote about rape and statutes of limitations. I suggested that one reason to abolish statutes of limitations is the need to prosecute a category of crime that has long received little attention, acquaintance rape. Instead of calling such cases “swearing contests,” I proposed, we need to understand that victims are credible eye-witnesses while criminal defendants are not. In response to my letter, some readers accused me of wanting to shift the burden of proof and eliminate the presumption of innocence. I am interested in neither. Here I want to explain the difference between the presumption of innocence and burden of proof, on the one hand, and the presumption that an alleged rape victim is lying, on the other.

by Neil H. Buchanan Having grown up in a centrist Republican household, but having been a Democrat for all of my adult life, I have long been fascinated by the people who have continued to affiliate with the Republican Party.  The inexplicable nature of continued party loyalty as Republicans have accelerated their flight from sanity and their embrace of outright nastiness has led me over the last few years to write columns with titles like, " What Would It Take? " (as in, what would it take for a person of decency finally give up on the Republicans?), " The Neanderthal Question in U.S. Politics " (too subtle?), and the plaintive (if self-derivative), " Seriously, What Would It Take? " One of the fascinating aspects of the Trump era has been the self-regenerating nature of what seems to be a constantly imploding Republican Party.  There are periodic spasms of people jumping ship, but the ship never seems to be any emptier.  (Sorry for the multiply mixed...

By Eric Segall Now that President Trump has named Brett Kavanaugh as his nominee to replace retiring Justice Anthony Kennedy, we can expect the confirmation process charade to proceed apace. Judge Kavanaugh will dodge most if not all the hard questions put to him by members of the Senate Judiciary Committee, the Democratic members will complain loudly, and then the nominee will be confirmed by a party line or almost party line vote. One word we can expect to hear a lot during this process is “originalism.” More on that below. One phrase we likely will not hear uttered by folks on either side of the aisle is “judicial activism.” That is truly unfortunate.

by Neil H. Buchanan How much interaction with unpleasant reality must anyone be expected to endure?  That would not seem to be a particularly pressing legal issue, but it seems that it has been keeping the Supreme Court's arch-conservatives up at night.  Americans who wish that they did not have to go out in the world and interact with other people of different religions, races, beliefs, and political views seem to have found salvation (pun intended) in a bloc of justices who are eager to protect fragile conservatives from being "complicit" in things that make them uncomfortable. That is the thesis of my new Verdict column , in which I tie together the Court's recent anti-union case ( Janus v. AFSCME ) and its run of cases in which Christian conservatives have been unexpectedly validated by a Court that says that they do not have to do things that they view as immoral.  My tone in the column is unsympathetic to the people who beg the courts to allow them not to p...

by Michael Dorf At no time since the appointment of Chief Justice Warren Burger in 1969 has there been a clear liberal majority of the Supreme Court. Yes, the Court has produced liberal decisions in various areas during the ensuing period, but always by picking up one or more conservative justices, often with the consequence that even liberal results were justified in conservative terms. Justice Kennedy's majority opinion in Obergefell v. Hodges  is a good example. While finding a right to same-sex marriage, it extols the virtues of marriage in a way that sounds in traditional conservatism, even to the point of insulting people who choose not to marry: "Marriage responds to the universal fear that a lonely person might call out only to find no one there." Lines like that are the price that we liberals grew accustomed to paying in order to secure liberal results based on conservative rationales. Accordingly, in anticipation of a Democratic victory in the 2016 presiden...

by Michael Dorf As we approach what then-Senator Joe Biden memorably termed the "kabuki dance" of a Senate Judiciary Committee confirmation hearing for a nominee to the Supreme Court, staffers are no doubt busily assembling questions and follow-ups for the Senators to ask Judge Kavanaugh. The exercise is largely pointless. Judge Kavanaugh will not say that he has active plans to overrule Roe v. Wade or any other precedents--and that will be sufficient to satisfy at least one of Senator Collins, Senator Murkowski, and the three red-state Democrats who voted to confirm now-Justice Gorsuch. The only really open question is the final vote.

by Michael C. Dorf Some abortion opponents argue that feminists ought not to favor abortion rights because women's access to abortion ultimately serves the interest of men who want access to women's bodies for sex without consequences. The argument is flawed. The feminist arguments for a right to abortion can be (and IMHO are) persuasive, regardless of whether some people support abortion rights for other reasons. That said, the pro-lifers are not wrong that some men who support abortion rights do so in order to maximize their own freedom to objectify women. As Susan Brownmiller wrote last fall after the death of Playboy founder Hugh Hefner, a man living the Playboy lifestyle "refused to be cornered into marriage just because a young lady he had bedded had the misfortune to get pregnant." Brownmiller drew the obvious comparison between Hef and Donald Trump, who, she noted, formerly supported abortion rights. In a 1999 interview  with Tim Russert in contemplatio...

by Diane Klein In mid-June 2018, the Director of the United States Citizenship and Immigration Services (USCIS), announced the formation of a new task force focused on de-naturalizing U.S. citizens.  This new office will be in Los Angeles, and is scheduled to open in 2019. Like " voter fraud " and ICE "liberating" towns from MS-13, there is no substantial naturalization fraud.  There is no crisis requiring a "task force" or a new U.S. Citizenship and Immigration Services (USCIS) office .  This is another pseudo-problem, put forward to advance the Trump Administration's racist, populist, and nationalist themes, regardless of the evidence (or the lack of it), and to justify mobilizing government resources against vulnerable people.  This time around, those people are citizens.  Lawyers who participate in this project - to the extent it targets individuals on the basis of race, religion, or national origin, as it seems very likely to do - should kno...

By Sherry Colb My column on Verdict this week discusses the US Supreme Court's decision in Carpenter v. United States . The Court held there that the government must get a search warrant before obtaining cell site location information from a target's wireless carrier. This means that if the government wants to know your comings and goings over the course of some period of time, and it hopes to do so by looking at a record of your cell phone's approximate locations (revealed to and recorded by your carrier at regular intervals when your phone is on), it needs to first go to a magistrate and successfully apply for a warrant. The lineup for the 5-4 decision was somewhat reassuring: Chief Justice Roberts and Justices Ginsburg, Breyer, Sotomayor, and Kagan. Justice Kennedy was not part of the five, so his departure should leave things unchanged for now in this one area of Fourth Amendment law.  In writing his opinion, moreover, Chief Justice Roberts said that people enjoy a...

by Neil H. Buchanan For obvious reasons, the new Supreme Court vacancy has been dominating the news for the past week.  In the meantime, Justice Kennedy's retirement seems to have raised Donald Trump's spirits, and even though we have not completely forgotten about Trump's cruel immigration and refugee policies, the "Who will he pick?" story is exactly the kind of cliffhanger that the former reality TV huckster loves. The media have all kinds of reasons to pump up the Supreme Court story, too, but I continue to believe that there really is no mystery about what will happen, as I will explain below.   I will then critique what is in the running to be the worst fact-check of all time.

by Anil Kalhan In Chief Justice John Roberts’s 5-4 opinion in  Trump v. Hawaii   deeming President Donald Trump’s third Muslim ban legally valid, one passage stands out as judicial clickbait: its two-paragraph discussion of   Koremtasu v. United States . Korematsu , of course, is a justifiably reviled Supreme Court decision, one long regarded as a leading case in the American constitutional  anti-canon . It is not surprising, therefore, that this passage in Roberts’s opinion has garnered widespread attention. In her dissenting opinion in  Trump v. Hawaii , Justice Sonia Sotomayor welcomes the Court’s “formal repudiation of a shameful precedent” as “laudable and long overdue,” characterizing Roberts’s opinion as “tak[ing] the important step of finally overruling  Korematsu .” However, especially in the context of a decision validating a policy  primarily motivated by anti-Muslim animus , there is little to find “laudable” in Roberts’s self-se...