Dorf on Law

by Michael C. Dorf In my latest Verdict column , I note that with Justice O'Connor's announcement last week that she is withdrawing from public life, we have reached another milestone in the passing of the Reagan Court. The announcement underscores what we already knew last summer when Justice Kennedy announced his retirement. After nearly three decades in which Reagan's appointees--O'Connor, Kennedy, and Scalia--dominated the Court, a new era has begun. I argue in the column that, ironically, the real Reagan Court has now finally been born. Here I want to focus on a very different sort of issue raised by Justice O'Connor's announcement. As readers may recall, Justice O'Connor announced retirement (pending confirmation of a successor) in 2005, at a time when she could have served longer. She did so in order to be able to care for her husband, who was then himself suffering from dementia. Unfortunately, John O'Connor's condition quickly worsened t...

by Michael C. Dorf This morning an NPR reporter referred to President Trump's suggestion that he would "end birthright citizenship" by executive order as "vaporware"--a rumored product that never actually materializes, intended only to thrill his fans, much like Trump's promised impending middle class tax cut. I hope that proves correct, but these are dark times in which one should take seriously even the most outlandish suggestions. Indeed, South Carolina Senator Lindsey Graham has already raised Trump's opening bid, saying that he plans to introduce legislation accomplishing by statute what Trump proposes to accomplish by executive order. Is either path open? The short answer is no. The long answer is also no, but in a way that may prove interesting to explore.

by Michael C. Dorf  (** New as of 10/31/2018: Updated with a Postscript) A recent column by David Brooks takes Democratic candidates to task for focusing so much of their midterm election messaging on health care. It's easy to dismiss this column as just so much concern-trolling by Brooks, and in an important sense it is that. Brooks--self-appointed defender of the Republic from the evils of identity politics--thinks that the Democratic strategy will fail because Democrats can only appeal to particular identity groups one at a time and are thus missing out on an opportunity to appeal to disaffected Republicans. That's not just wrong but actually backwards. To state the obvious, everyone--regardless of race, sex, religion, gender identity, or any other identity--needs health care. The emphasis on health care reflects Democratic efforts to broaden the party's reach by appealing to voters who may have identitarian reasons of their own (such as whiteness or Evangelical Chr...

By Eric Segall Justice Clarence Thomas is our longest serving Supreme Court Justice. He first came into the public eye in October 1991, when Anita Hill accused him of sexual harassment. He dogmatically denied the claims calling his confirmation hearing a “hi-tech lynching.” He has been embroiled in controversy ever since. Many conservative Court scholars believe it is Justice Thomas, not the deceased Justice Scalia, who has been the most important driving force behind originalist decision-making. Thomas has written solo opinions challenging well-established Supreme Court doctrine in the areas of gun control, the appropriate balance between church and state, and Congress’ powers to regulate the economy, among many others important swaths of constitutional law. He has also recently been called by one liberal commentator the “most important legal thinker in America.” Dozens of Thomas’ law clerks have become federal judges, and his originalist statements about constitutional...

by Neil H. Buchanan The federal budget deficit is one of those handy political issues that never stays out of sight for very long, because it is too tempting for demagogues to exploit it.  It has the simultaneous advantage of seeming to be self-evidently important yet too difficult to truly understand, making it easier simply to say that "borrowing is bad, and deficits are hurting our children and grandchildren."  If ever there were a political Q.E.D., there you have it. To make matters worse, this is the go-to subject that ignorant pundits use to prove that they are not merely political hacks.  "Hey, I know that we argue about political issues, but every serious person knows that at some point we must all come together to deal with those horrible deficits.  Debt will destroy us all!"  There are so many examples of that kind of statement by people who know next to nothing (or literally nothing) about economics -- but who have positive reputations among liber...

by Sherry F. Colb In my Verdict column this week, I discuss a controversial website at the University of Washington, where victims of sexual misconduct can anonymously post the names of their assailants or harassers. Addressing the issue of how we might think about the existence of such a list, I drew an analogy between the list and coat-hanger abortions, as both are symptoms of larger phenomena. I went on to suggest that the solution to undesirable processes can sometimes be to offer alternatives to those processes--a willingness to criminally prosecute acquaintance rape as a matter of course, for example, and an available abortion provider who can terminate unwanted pregnancies in a safe and medically competent fashion. In this post, I want to explore some further links between rape and abortion, because I think there are several. The issue of abortion appears to be more controversial than the issue of rape, so why would anyone want to talk about the two together in an effort to...

by Neil H. Buchanan As the news cycle plods along on its inexorable march of awfulness, those of us who toil in the fields of legal analysis cannot help but linger on the implications of the recent change in Supreme Court personnel.  The replacement of only-occasionally-not-arch-conservative Anthony Kennedy with yet another full-on movement conservative continues to pose questions about how the judiciary will operate going forward. These questions will, of course, only become more pressing as Senate Republicans put more and more Thomas/Gorsuch/Kavanaugh clones on lower courts, which will continue at least through the upcoming lame duck session and for at least two additional years if (as expected) the Republican majority holds or is expanded in next month's midterm elections. Will this wave of conservative justices and judges change the way cases are handled by the courts -- not in the sense of procedural changes (although those might well be in the offing as well), but in t...

by Michael C. Dorf At its conference on Friday, the Supreme Court will decide whether to grant review in Flowers v. Mississippi ( SCOTUS page here ). Flowers was tried six times for the same offense. Each of the first five trials resulted in  a reversal of a conviction, a mistrial, or a hung jury. On try number six, a jury that was selected through racial discrimination found Flowers guilty and sentenced him to death. There are at least four reasons for the US Supreme Court to take the case or summarily reverse the decision of the Mississippi Supreme Court upholding the conviction and sentence.

By Eric Segall I just finished reading a great new book by Professor Kent Greenfield of Boston College Law School called "Corporations are People Too (And They Should Act Like It)." For anyone interested in what constitutional rights corporations should possess, or in corporate rights and responsibilities generally, this book is a must read. Greenfield is one of the very few law professors in America with a serious background in both constitutional and corporate law, and his double expertise is reflected in almost every chapter of the book. The essential thesis of the book is that the law does and should treat corporations as people, and the strong anti- Citizens United  movement arguing that corporations are not people is deeply misguided. At the beginning of the book (pp. 2-3), Greenfield points out that, first, for a very long time corporations have been deemed people under a myriad of legal regimes because corporations can sue, be sued, and "own and sell stuff...

by Michael C. Dorf Earlier this week, Federal District Court Judge S. James Otero issued an order dismissing the defamation lawsuit by Stephanie Clifford, aka Stormy Daniels, against Donald Trump. After Clifford had said that in 2011 she was threatened by a man who worked for Trump or then-Trump-attorney Michael Cohen, Trump tweeted that the threatener was "nonexistent" and that Clifford's story was "a total con job." Clifford sued Trump for defamation on the ground that calling her a liar was, well, defamatory. Judge Otero dismissed the suit. He did not say that Trump was right. Instead, the judge said that Trump's statements were not to be evaluated under ordinary standards of truth, because they were mere "rhetorical hyperbole" that a reasonable person would not expect to be true as such. I think that's probably wrong.

by Neil H. Buchanan Last week, the Sveriges Riksbank Prize in Economic Sciences in Memory of Alfred Nobel was awarded to Professors William Nordhaus and Paul Romer.  Nordhaus won for his work on the economics of climate change, Romer for studying how economic growth responds to the creation of knowledge. I have nothing to say here about either economist or his work, although I might write something about one or both of them in the near future.  I should add that I am not ignoring them out of disrespect.  They seem like fine choices, within the confines of that prize.  But it is those confines that I want to address here, in large part to compare them to the limitations of another prestigious award, the Pulitzer Prize. Longtime readers of this blog might recall that I am a stickler about calling the economics prize what it is (see the first line above) -- and not calling it what it is not: "The Nobel Prize in Economics."  My column on this subject from 2...

By Eric Segall Over the last two days, numerous folks on social media, triggered by a blog post by John McGinnis, have lamented, in McGinnis' words that " it would be malpractice for law professors "not to describe originalism as an important theory of constitutional interpretation." He went on to say the following: There is reason to believe that many professors are failing to give their students a fair minded introduction to originalism. The first is anecdotal. I have given talks at law schools across the country. I hear from students that originalism is generally given short shrift and Scalia opinions are often simply ridiculed. The second is sheer ignorance. Most constitutional law professors are not constitutional theorists and do not study originalism as part of their scholarly enterprise. It is all too easy then for political bias to lead them to denigrate or downplay a theory that has been associated with conservatism, when they are themselves,  as stud...

by Michael C. Dorf In my latest Verdict column , I take aim at one of the many lies in the op-ed that appeared last week in USA Today  under Donald Trump's name--the claim that the president has kept his promise to protect health insurance for people with pre-existing conditions. I explain that the claim does not pass the laugh test. Among the reasons I give is the administration's support for a pending lawsuit by Texas and nineteen other states that, if successful, would invalidate the Affordable Care Act's prohibition of screening out or charging extra for persons with pre-existing conditions. The column describes the lawsuit's key argument in greater detail, but the very short version goes like this: (1) the ACA's individual mandate was upheld by the SCOTUS as a tax; (2) Congress eliminated the tax late last year as part of its tax cut law; (3) therefore the mandate no longer has a constitutional basis; (4) the mandate was designed by the Congress that enacte...

by Neil H. Buchanan The end of the Kavanaugh confirmation travesty, which now seems a million years ago, overlapped with the blockbuster story in The New York Times about the Trump family's decades of tax dodging and other scams.  Or it would have been a blockbuster story in anything resembling a normal universe. The Times showed, through meticulous research, that young Donald Trump's father had not merely given his son the mythical "small loan of a million dollars" (which Trump insists he repaid with interest) that put Trump on the path to unimaginable success.  By evading the estate tax and other taxes in a variety of ways (and I do mean "evading," which means illegal underpayment of taxes), not to mention by making money from government contracts and exploiting low-income renters, Fred Trump ended up transferring a total of $413 million (in inflation-adjusted dollars) to his son. The Kavanaugh and Trump stories are actually connected by a common ...

by Sidney Tarrow Soon after the election of Donald Trump, a wave of protest bubbled up against the new president and his policies. Beginning with the “Women’s March,” followed by protests on behalf of gun control and against the threat of climate change, and led by new groups like Indivisible and old ones like the ACLU, the movement reached into the legal profession when Trump, soon after entering the White House, abruptly  announced a painful and chaotic ban on refugees and others from several majority-Muslim countries (as described by Michael Dorf and Michael Chu here ). When the #MeToo and Never Again movements emerged, it began to seem as if American civil society was rising up in a body against the excesses and outrages of the new administration. Academics and activists soon collected these varied movements under the rubric of “The Resistance,” but as David Meyer and I argued in our recent book, The Resistance: The Dawn of the Anti-Trump Opposition Movement, that lab...

by Sherry F.  Colb Mostly lost amidst the credible testimony and ignored accusations of sexual assault against Brett Kavanaugh was a story  about his law clerk hiring practices.  The story suggested that (a) all of then-Judge Kavanaugh's female law clerks have looked like models; (b) this is no accident; (c) Professor Amy Chua at Yale Law School groomed some of the female students for these clerkships by asking applicants to send her selfies in the outfits they planned to wear to the interview; and (d) Professor Jed Rubenfeld of Yale Law School, husband of Professor Chua, advised female students that Judge Kavanaugh liked his clerks to have a "certain look." Chua vociferously denied the story, which in turn led a former student to say that Chua was "lying" in her denial. Needless to say, this story raises some questions. And if Kavanaugh has done what he is accused of doing, it puts the fact that he has a very strong record of hiring female law clerks in a...

by Neil H. Buchanan There has been a surge of commentary recently about the Republicans' embrace of conspiracy-laden accusations against the Democrats, including the bizarre claim that the people who confronted Republican senators prior to Brett Kavanaugh's confirmation vote were yet another group of "crisis actors" who had been paid by (who else?) George Soros.  As familiar as all of this has become, fantasies like this still have the capacity to surprise because of their complete disconnect from facts and logic. In my most recent Dorf on Law column , I discussed the paranoid underpinnings of these conspiracy theories, once again drawing from Richard Hofstadter's timeless 1964 essay, " The Paranoid Style in American Politics ."  To the extent that Republicans actually believe their own craziness, they are under the spell of extreme paranoid delusions, especially now that they are railing against their "powerful" opponents whom the Republi...

by Sherry F. Colb Dr. Christine Blasey Ford needed a great deal of courage to come forward and accuse Judge Brett Kavanaugh of attempted rape. Such accusations predictably yield resistance, with allies of the accused saying that the accuser is either lying or mistaken (or crazy). Yet Ford brought her accusation nonetheless, saying that she felt it was her civic duty, and Donald Trump described her testimony as credible; at least that is part of what he initially said. He also observed that he himself has endured false sexual assault allegations, implying that he and Kavanaugh were like peas in a pod.  Trump's expressly drawing a parallel between his own and Kavanaugh's experience was interesting. Trump, as we know, effectively confessed to sexually assaulting women in an  Access Hollywood video  that aired only weeks before the presidential election. The women who subsequently came forward were simply confirming that Trump had committed the criminal acts that he...

by Neil H. Buchanan The post-Kavanaugh political conversation has been dominated by Donald Trump's effort -- gleefully supported by Republicans -- to turn the recent confirmation process into a political rallying cry.  As The Washington Post 's Paul Waldman explained , the new Republican talking point is a version of what both Kavanaugh himself and Lindsey Graham shouted at the Judiciary Committee's Democrats: You're all power hungry, angry political animals! The Republicans are now claiming that "mobs" of Democrats swarmed the Capitol and tried to "destroy" a completely honest and decent man.  Dr. Christine Blasey Ford was, at best, mistaken in identifying her attempted rapist (if it happened at all), and George Soros is behind it all.  It plays like a mash-up of the Republicans’ favorite slanders of Democrats and deepens Republicans' claims of victimhood. There are many angles from which to analyze this new development, obviously includin...

By Eric Segall Letter to my Granddaughter, 8/24/2045 Dear Jenny, As you prepare for your first year teaching constitutional law at Clarence Thomas Law School at Liberty University, I thought you might find it helpful to have an accurate historical perspective on some of the subjects you're going to teach. I know you will find some of the law described below to be ancient history, but I can assure you, it wasn't that long ago.

by Michael C. Dorf  ( cross-posted on Take Care ) [Non-spoiler Alert: This essay discusses the tv series The Americans , but it should not ruin the viewing experience of any readers who intend to watch it.] In the rightly acclaimed tv series The Americans , two Soviet agents live undercover in the US for many years under the identities of Philip and Elizabeth Jennings. They pose as mild-mannered travel agents by day while committing acts of political sabotage and murder by night. They arrive in the US as committed communists in the 1960s, but by the time the show opens in the early 1980s, Philip has grown fond of suburban American life and its creature comforts. The conflict between Philip and Elizabeth over how committed each remains to the cause of global communism fuels much of the show's gripping narrative. By the time the sixth and final season opens, Philip has quit working for the KGB, as he has grown wary of its efforts to undercut Gorbachev's reforms and peace over...

by Michael C. Dorf Today I am participating in an all-day conference at Georgia State Law School called Reflections on Justice Kennedy . As you can see from the conference website, there's a great lineup, although unfortunately the journalists (Nina Totenburg, Adam Liptak, and Emily Bazelon) all had to pull out to stay in DC to cover the latest on the Kavenaugh nomination. Organizer (and DoL blogger) Eric Segall put the panel together months ago--before we had learned that Justice Kennedy was retiring--so the timing is simply bad luck. Anyway, the rest of us will do our best to keep it lively. The day starts at 8 a.m., and proceedings will be streamed live here if you want to tune in. It will also be recorded by CSPAN for possible future airing. From 10:15 - 11:30 I'll be filling in for Bazelon on a panel on the substance and style of Kennedy's prose, along with Jamal Greene and Eric Berger. With Eugene Volokh, I'll be talking about Justice Kennedy's First Amen...

by Neil H. Buchanan [Note to readers: My latest column on Verdict , " The Kavanaugh Travesty: A Roiling Brew of Alcohol and Entitled Self-Righteousness ," is now available.  I mention it briefly in my column below, but it is a stand-alone piece that I hope many of you will read and possibly even enjoy.] Saturday Night Live 's lampooning of Brett Kavanaugh's September 27 testimony was hilarious, with Matt Damon perfectly depicting Kavanaugh's extreme anger, childish petulance, and blatant lying.  Even so, they missed an opportunity -- an opportunity that was suggested not by a comedic genius but by CNN legal analyst Jeffrey Toobin. Toobin pointed out after the hearing that, if Christine Blasey Ford had been the unhinged, shrieking, self-pitying witness that Kavanaugh was, she would have been immediately dismissed for lacking all credibility.  And that observation has led me to imagine how SNL could have brought that alternative reality to life. Imagine j...

By Eric Segall Are you tired of the Brett Kavanaugh controversy? If so, maybe take your mind of it by watching via live stream this Friday a symposium I am hosting on Justice Kennedy's career and legacy. The conference has an all star cast (minus a few nationally known reporters who for good cause had to cancel at the last minute because they had to stay in DC due to the aforesaid Kavanaugh controversy). As you can see from the agenda below, we have a diverse group of law professors (five from the Volokh Conspiracy, two from right here at Dorf on Law, two from Balkinazation and a host of  extremely talented others). The format is conversations not speeches, the issues range from abortion and gay rights to federalism, separation of powers, and freedom of speech and religion, as well as Kennedy's writing style and his role as the median Justice.

by Michael Dorf Here is a story I was told by a former clerk to the late Chief Justice Rehnquist about the late Chief Justice Burger: One day, the Supreme Court was hearing oral argument in a Fourth Amendment case in which the issue was whether the police had probable cause to search the defendant's home for drugs. Burger was unhappy with the direction the argument was headed, so he interrupted the defendant's lawyer. "What if the police came into your client's house and saw a dead body?" Burger asked. The lawyer replied that if the police lacked probable cause or consent to enter the house, the evidence thereby obtained would be inadmissible at trial, regardless of whether the charge were drug possession or murder. Burger harumphed unhappily. A few moments later he interrupted the lawyer and asked "What if there were two dead bodies?!" The story was told to me to illustrate that Warren Burger was not exactly the smartest or most logical justice to d...

by Michael C. Dorf I'll be back in a couple of hours (or less) with another Kavanaugh-related post, but for your morning read, check out my new Verdict column . It provides a brief primer on net neutrality, summarizes the DOJ's argument for pre-emption of California's new net neutrality law, outlines three lines of potential response by California, and offers some broader thoughts on how the conservative attack on the administrative state could be good for progressive regulation in the long run. To be clear, my observations about the potential upside of the attack on the administrative state is an effort to make lemonade out of lemons, not my first-order preference.

by Neil H. Buchanan Although it has been a depressing spectacle, the Brett Kavanaugh controversy has provided a few possible upsides.  This seems, for example, to have become a breakthrough moment in which many more people have come to understand why women (and men) who are the victims of sexual abuse do not immediately (or, in many cases, ever) report the crimes.  That alone is a major cultural shift. On the more cynical side, it is a plus of sorts to watch Republicans shift from a stance that in the recent past would have seen them blatantly saying, "I don't believe her," to now saying essentially, "I believe her, but I don't care."  Just as it is a positive thing for racists to understand that it is bad to admit openly to racism, there is something positive about the social realities that have led to this newer version of Republican misogyny -- especially because their new approach is more obviously cruel, even though it is unspoken. And of course, ...

by Michael C. Dorf During his prepared remarks at last Thursday's hearing, Judge Brett Kavanaugh claimed that he has been the victim of an "orchestrated political hit" and "smears" emanating from the "left." Republican senators repeatedly echoed this complaint. Yet the vast left-wing conspiracy theory has a glaringly obvious problem. As Senator Khamala Harris made clear in her questioning of Kavanaugh, it doesn't explain why Democrats are targeting Kavanaugh for supposedly false allegations now when they did no such thing to the previous Trump SCOTUS nominee. Here's the exchange: HARRIS: I’ll point out to you that Judge — Justice now — Neil Gorsuch was nominated by this president. He was considered by this body, just last year. I did a rough kind of analysis of similarities — you both attended Georgetown Prep, you both attended very prestigious law schools, you both clerked for Justice Kennedy, you were both circuit judges, you were both no...