Dorf on Law

by Neil H. Buchanan In 2016, the Republicans in the U.S. Senate bluntly told everyone that they were not going to take up Barack Obama's nomination of Merrick Garland to the Supreme Court.  Everyone was shocked and did not truly believe they would go through with it, but it happened.   In late 2017, congressional Republicans shed all pretense that they were going to follow normal (or even minimally rational) procedures in passing their punitively regressive and expensive tax bill, yet even avowed proceduralists like John McCain and NeverTrump fiscal faux-hawks like Jeff Flake happily went along with the multi-trillion dollar upward redistributive scheme. At multiple times in the past two decades, Republicans have announced that they were blocking even the most minimal gun control legislation, even when ninety percent of the public supported it.   In early 2020, Senate Republicans announced that they were not going to take their constitutional duty seriously by holding a ...

  by Michael C. Dorf Within the last week, the Supreme Court has ruled on two election-related stay applications from Pennsylvania, one from Alabama , one from Wisconsin , and one from North Carolina . In three of the five rulings, the position favored by Democrats prevailed, with the result that, for now, the deadline for counting absentee ballots is modestly extended in Pennsylvania and North Carolina but not Wisconsin. The Alabama case (in which Democrats lost) involved curbside voting, not deadlines. Superficially that pattern is good news for Democrats. So far as the Presidential race is concerned, counting every possible vote in Wisconsin is less crucial than in Pennsylvania and North Carolina, given that Joe Biden has a wider polling lead in Wisconsin than in Pennsylvania or North Carolina. Meanwhile, Biden is not going to win Alabama under any circumstances, and while Doug Jones cannot afford to lose any votes, he's likely to lose his Senate seat regardless. But even the go...

  by Michael C. Dorf Joe Biden spent part of yesterday campaigning in Warm Springs, Georgia, which had been the site of a retreat owned by FDR. The  NY Times described Biden's speech there as "a let-us-come-together appeal that evoked the sort of common purpose that sustained the country during the Great Depression and World War II and that Mr. Biden said was needed to overcome the coronavirus." Fair enough. But for many people who have been following the news from and about the Supreme Court, reminders of FDR are more likely to evoke his Court-packing plan than his unifying rhetoric. Biden himself, however, pretty clearly did not intend that message. As I explain in my new Verdict column , the bipartisan commission Biden hopes to create to study potential court reforms is highly unlikely to recommend Court expansion. We can see that from both the way Biden himself has talked about it--"not a fan"--and the nature of the commission--bipartisan and thus extraordi...

by Neil H. Buchanan Before I get to the discussion advertised in the title of this column, let me start with a seemingly unrelated question: When you receive a refund on your taxes, do you think that you paid zero taxes in that year?   That is possible, of course, but the more likely case is that you (like millions of Americans) have set up your payroll arrangements so that you end up paying more in taxes during the year than you will owe, giving you a nice little lump of sugar when you fill out your taxes in April.  Or if (like me) you want to withhold fewer dollars during the year and then pay a nominal sum with your tax return, you can do that, too.  In neither case, however, is the amount you owed in taxes in a given year knowable from the refund/owed lines of your tax return. Donald Trump, however, thinks otherwise.  At least based on what he said at the most recent non-debate, he believes that the report in The New York Times showing that he paid only $750 in...

 By Eric Segall Once upon a time in a small corner of Texas there was a federal trial judge named Reed O’Connor who really, truly hated Barrack Obama and all other things liberal. He ruled several Obama-era policies regarding transgender students unconstitutional, he struck down a federal law prohibiting the interstate transportation of handguns, and he overruled an Obama administration rule barring health care providers from discriminating based on gender identity. Those conservative rulings all came before his tour de force front-page potentially country-changing decision in the aptly named case California v. Texas to invalidate the entire Affordable Care Act (Obamacare) potentially disrupting our entire health insurance and health care systems. Why would Judge O’Connor do such a drastic thing apart from his obvious desire to both destroy all things Obama and to be elevated to the Fifth Circuit Court of Appeals, otherwise known as the anti-Obama Circuit? The story begins i...

by Neil H. Buchanan Last night, Joe Biden and Donald Trump appeared in what would have been their third and final joint TV event, in what is still laughably called a debate.  With the world having been spared the second such event, I had hoped that this one would also be canceled.  We were not so lucky.   For the sake of my mental health, I did not watch the broadcast.  As I explained after the Mike Pence smarm-fest (better known as the Vice Presidential debate) two weeks ago: "[T]he only way that I can consume an event like last night's joint press conference with Pence and Senator Kamala Harris is by reading news coverage and watching various talk shows (where even exposure to 15-second clips threatens to send me into convulsions). "Given that none of these so-called debates are actually debates, I no longer feel in any way honor-bound to treat them seriously ... .  The only thing that matters is how the punditocracy scores them, and even that matters...

  by Michael C. Dorf In our public life we face multiple current and looming catastrophes: a surging global pandemic; resulting economic devastation; a grotesquely hypocritical rush to fill a Supreme Court vacancy; devastating wildfires and other climate-change-worsened natural disasters; and a Presidential election in which the incumbent has repeatedly indicated his intention to reject the outcome and deploy political violence to remain in power. It can be overwhelming. Thus, as a service to my readers, today I offer a distraction in the form of analysis of a trivial matter-- the suspension of New Yorker writer and CNN analyst Jeffrey Toobin after he was seen masturbating during a Zoom-based meeting in which various figures were gaming out possible election scenarios. I haven't kept close count, but this is at least the second sex-related scandal involving Toobin. He also  made news a little over a decade ago when he unsuccessfully resisted the claim that he had fathered a ...

by Sherry F. Colb In my Verdict column this week, I continue a discussion I began two weeks ago of why people so frequently treat charges of acquaintance rape as “he said/she said” cases. I challenge this characterization for the obvious reason that defendants have every incentive to say “I’m innocent,” whether they are or not, while accusers have no similar systematic incentives to level accusations independent of their truth. Stated differently, what “he said” is inherently low in credibility, and it is not obvious why we would similarly demote what “she said” when we would not do so in cases of stranger-on-stranger crimes (including rape), even when there are just two witnesses, “he” and “she.” I suggest that the explanation for this puzzle may be a function of the stereotypical stories we all learn about relationships between men and women. All of us have heard that “hell hath no fury like a woman scorned.” Because no one wants to be rejected, we assume that the woman who accus...

by Neil H. Buchanan   Weirdly, Donald Trump has recently altered his stream-of-consciousness speeches at his rallies to include musings about the possibility of losing the 2020 election.  He has even talked about leaving the country, which has provided no end of delight to late-night comedians and pundits.  But does this mean that he is actually preparing for the possibility of losing and -- gasp! -- admitting that he has lost, followed by a peaceful exit from the White House?   Would that it were so, but we need to remember that we are talking about a person with an incredibly short attention span who leaves not even the most fleeting thought unspoken.  That he has apparently occasionally considered that he might lose the election tells the world nothing about what he will do if (when?) the time comes.  He has put in all kinds of spadework to allow his claims of voter fraud to take root and ultimately blossom, and his legal team has already spent ungodly ...

  by Michael C. Dorf A recent Twitter thread by my colleague James Grimmelmann begins: "The current discussion about whether Democrats should expand the size of the Supreme Court if they control the 117th Congress is an important one. But it overlooks something equally important." Prof Grimmelmann then goes on to catalogue some of the many ways in which a Democratic Congress could reshape the law in a great many areas, including voting rights, qualified immunity, antitrust, court access, and much more. Some respondents pushed back, observing that a very conservative SCOTUS could and likely would limit much of what a Democratic Congress and President accomplished legislatively through a combination of constitutional limits and statutory interpretation. I think that's a genuine worry, although that hardly means that a Democratic Congress and President shouldn't pursue an aggressive substantive agenda. Here I want to speculate a bit about how the prospects for Court exp...

By Eric Segall Senator Smarty Pants (SSP): Judge Barrett, would you please explain your judicial philosophy to us? Judge Amy Coney Barrett (ACB): Sure, I'd love to. Judges should interpret the text according to its original public meaning. SSP: Okay, so let’s talk about the original public meaning of text of the 14 th Amendment. Do you know what the Amendment says? ACB: I’m sorry I can’t answer that. SSP: How about I give you my pocket Constitution so you can read it? ACB: I was just playing with you. I know what it says. SSP: Good one! Okay, so whether we are talking about the equal protection clause or the privileges or immunities clause, do you think the 14 th Amendment provides equal rights to women. ACB: Now that one I really can’t answer.

  by Michael C. Dorf What did we learn from the confirmation hearing for soon-to-be-Justice Amy Coney Barrett? Mostly, that she's smart, knowledgeable, unflappable, and extremely disciplined at not answering questions. In that regard, she does not differ much from any SCOTUS nominee of either party in the last three decades (with the exceptions of Justices Thomas and Kavanaugh in phase two of their respective hearings, when they were respectively flappable and very flappable). All of the current Justices had the requisite professional qualifications when appointed. And although one can argue about whether Barrett took the non-answering to new levels, we should keep in mind then-Professor Elena Kagan's observations about non-answering over a quarter century ago. Writing in the  University of Chicago Law Review , Kagan said of nominee Ruth Bader Ginsburg: Justice Ginsburg's favored technique took the form of a pincer movement. When asked a specific question on a constitutio...

by Neil H. Buchanan What would it be like to be on the winning side of a Constitution-shattering political putsch?  Winning is great, right?  Certainly, one would think that -- at least for those who have no principles other than grabbing political power by any means necessary -- life would be pretty good on the other side of a coup d'etat.  You enjoy the spoils, and the other guys eat dirt. In my new Verdict column today , I start to address that question by looking at the highest-level Republican enablers of Donald Trump.  In fact, I was looking at only a subset of that group, limiting my analysis to those who imagine that they will be president someday.  That means that, for the purposes of that column, I was not looking at Mitch McConnell, Bill Barr, or any of the others who are abetting Trump's push toward a dictatorship. There are, at all times, governors and U.S. Senators (and occasional House members) who picture themselves as a future president. ...

  by Michael C. Dorf One current and two deceased jurists loom large over the Senate Judiciary Committee hearing regarding Judge Amy Coney Barrett's nomination to the Supreme Court. The living one is Judge Merrick Garland. GOP Senators' rush to confirm Barrett after their refusal to hold hearings for Garland display their hypocrisy--as do the self-serving and post-hoc justifications  they have offered for a naked power grab by a party eager to capitalize on the least democratic features of our political system. To be sure, Lindsey Graham opened the hearing on Monday with the declaration that "there's nothing unconstitutional about" what he and his fellow Republicans are doing. That's true but beside the point. There was nothing unconstitutional (or even illegal) about Graham becoming Donald Trump's boot-licking caddy  after calling him a " race-baiting, xenophobic, religious bigot " and a " jackass ." There would be nothing unconstituti...

by Neil H. Buchanan   Is it too late to change the narrative on so-called court packing?  As I noted at the beginning of last Friday's column here on Dorf on Law , we have already lost the supposedly neutral headline writers at The New York Times , who label any discussion of changing the structure of the Supreme Court with that negative-sounding term.  The Times has, moreover, continued in the days since then to treat this Republican-friendly framing as the unexceptional default. And it is not only the most influential newspaper in the country that has fallen into this black hole.  MSNBC's anti-Trump opinion shows are buying in, with what was otherwise an excellent segment with Senate Minority Leader Chuck Schumer -- who never used the term court packing -- being accompanied by a chyron reading: "SEN. SCHUMER (D-NY) ON COURT PACKING."   Heck, in a press conference in which Joe Biden quite effectively said that expanding the Supreme Court is not a pressing ...

 By Eric Segall When the Senate begins its confirmation hearings for Judge Amy Coney Barrett today, she will no doubt identify herself as an originalist when it comes to constitutional interpretation. Her mentor, Justice Scalia, was famous for preaching originalism as the best method for deciding constitutional law cases, as have current Supreme Court Justices Clarence Thomas, Neil Gorsuch, and Brett Kavanaugh. But all these justices as well as Judge Barrett are selling snake oil because there is no such thing as an originalist judge. What these judges are actually doing is hiding their personal value judgments behind a false veneer of history. There are conservative judges, liberal judges, and moderate judges, but there are no originalist judges.

by Neil H. Buchanan   Jamelle Bouie, a liberal/progressive columnist for The New York Times , wrote a thoughtful analysis today describing how Democrats can respond to the Republicans' decades-long strategy to stuff the courts with hard-right radicals.  I recommend reading the entire piece, but I will quote here only the last two paragraphs: "I have no doubt that Republicans will confirm Barrett, if they can manage it. If the past four years have been a smash and grab, where Trump smashes our institutions and the Republican Party grabs as much political loot as it can carry, then an additional seat on the Supreme Court is too valuable a trophy to give up. But there is no rule that says you get to keep stolen goods, and the Barrett seat — like the Gorsuch seat — represents a theft.  "If Democrats make Republicans pay a political price in November for their rank and ruinous opportunism, then in January they should use their power to restore to the people what was ...

by Neil H. Buchanan I happen to have a very low tolerance for smarminess, but even those who think that Lifetime TV movies are too subtle must surely have a very hard time watching Mike Pence.  Accordingly, the only way that I can consume an event like last night's joint press conference with Pence and Senator Kamala Harris is by reading news coverage and watching various talk shows (where even exposure to 15-second clips threatens to send me into convulsions). Given that none of these so-called debates are actually debates, I no longer feel in any way honor-bound to treat them seriously, as I used to try to do (especially given my many years of involvement with scholastic and collegiate debating).  The only thing that matters is how the punditocracy scores them, and even that matters only a tiny bit.  For what it is worth, then, the consensus appears to be that nothing particularly important happened last night, and the event changed nothing. That is good, I guess, alth...

  by Michael C. Dorf On Friday of this week I'll be participating in an all-day symposium sponsored by the Duke Center for Firearms Law and the Northwestern University Law Review: The Second Amendment's Next Chapter . Like just about every other academic conference these days, we panelists will be attending via Zoom, which has, as an upside, relative ease of viewing for interested audience members. Registration info can be found here . The schedule (using Central Time) can be found here . I often use the occasion of an upcoming conference or public speech to preview my remarks on the blog, but for this conference I'm in the course of writing up my paper and will therefore wait until I have it closer to finished to summarize it in substantial detail. For now I'll just say that: (1) My paper is tentatively titled When Two Rights Make a Wrong:  Armed Assembly Under the First and Second Amendments ; (2) it expands on my 2017 analysis of the Charlottesville march and mayhe...

  By Eric Segall Thurgood Marshall and Ruth Bader Ginsburg would both have been American heroes had neither one spent a single day on the United States Supreme Court. Both were trailblazers who spent their finest years fighting for equality. Excellent litigators who knew that change often comes slowly and reluctantly to our nation’s highest Court, they employed brilliant strategies to convince the justices to require formal legal equality for people of color and women. Their legal careers and achievements are quite similar--including how they reflect on the inanity of life tenure for Supreme Court Justices.

  by Michael C. Dorf The late great Israeli diplomat Abba Eban famously quipped that Palestinians "never missed an opportunity to miss an opportunity." Whether that was fair and whether it might also apply to Israelis as well are questions about which I express no opinion. However, I would like to borrow the line to adapt it to the Trump administration. In just the last week, we have seen Donald Trump and the sycophants who surround him repeatedly take the opportunity to miss an opportunity. The first Presidential debate--which was less than a week ago!--presented Trump with a softball for the ages when moderator Chris Wallace asked Trump to denounce white supremacy. Trump not only whiffed but appeared to compound the problem by encouraging the Proud Boys to "stand back and stand by," as though readying them for further action. Even so, the very next day, Trump could have done himself a huge favor by saying something like the following: Mr. Wallace asked me to denou...

by Matthew Tokson I recently posted a new draft article to SSRN, " Inescapable Surveillance ," forthcoming in the Cornell Law Review . It deals with the idea of "inescapability" in Fourth Amendment law, although many of its conceptual arguments apply outside of that context as well.  The concept of inescapability surfaced in its modern form in Carpenter v. United States . Before Carpenter , Supreme Court precedent dictated that a person waived their Fourth Amendment rights in information they disclosed to another party. In Carpenter , however, the Court established that the Fourth Amendment protects cell phone location data even though it's revealed to others. The Court emphasized that consumers had little choice but to disclose their data, because cell phone use is virtually inescapable in modern society. In the wake of Carpenter , many scholars and lower courts have endorsed inescapability as an important factor for determining Fourth Amendment rights. Under t...

by Matthew Tokson In recent years, the Supreme Court has added a "trespass test" on top of the "reasonable expectation of privacy" test for Fourth Amendment searches. Under the trespass test, any government touching of "persons, houses, papers, [or] effects" for information-gathering purposes is a Fourth Amendment search. This simple-sounding test, adopted in its modern form in 2012, has in short order produced several difficult questions for courts. In 2013's Florida v. Jardines , the Court's application of the test turned on a detailed analysis of the "background social norms" around approaching a house's front door. A divided Court ultimately concluded that these social norms prohibited the use of a drug-sniffing dog near the entryway of a house. Homeowners implicitly consent to police and other visitors approaching their door, knocking, and perhaps asking them questions or glancing around the doorway area--but owners do not impli...

by Neil H. Buchanan   The Electoral College, it turns out, is not the most undemocratic method by which a president can be installed in office.  Unsurprisingly, Donald Trump is now committed to the even less democratic approach of having the House of Representatives choose the 2020 winner. But wait, you say.  Why would Trump want Speaker Nancy Pelosi's legislative chamber, with a clear majority of Democrats, to get anywhere near the election?  As it happens, the Twelfth Amendment to the Constitution created a system in which the House could determine who is president, but each state would have one vote.  And because the Republicans now have a majority of the House caucuses from 26 states, Trump thinks that he has found his golden ticket back into the White House. That is nonsense, as I will shortly explain.  As a threshold matter, however, I should say that it is truly awkward even to appear to be defending the Electoral College.  The Electoral Colleg...