Dorf on Law

by Neil H. Buchanan Note to readers: I have published two new columns this week on Verdict , which I hope that many of you will check out and possibly even find interesting: -- " Dead Democracy Walking ," published yesterday, represents a pivot point from writing about the possible death of the U.S.'s imperfect experiment in constitutional democracy and the rule of law to taking that imminent death as a given; and -- " Statehood for D.C. Could Not Be Reversed ," published this morning, demonstrates that D.C. statehood ought to be an easy call, even under the strained logic of filibuster lovers like Joe Manchin and Kyrsten Sinema, because it could not be reversed by Republicans even after they establish one-party rule.  But I also point out that ultimately it does not matter, because "Dead Democracy Walking." I am planning to write yet another Verdict column to be published this Thursday, where I will explore the future of federalism under one-party R...

 By Eric Segall My first book, Supreme Myths: Why the Supreme Court is not a Court and its Justices are not Judges, came out in 2012, about six years after the Roberts Court began. The thesis of the book was not that the Court is always partisan or that all the Justices are awful or that the country would be much better off if only the Court mirrored my progressive politics. The thesis of the book was that over the centuries the Supreme Court has not taken prior positive law seriously enough to justify calling the institution a court.  It is relatively common ground that judges are not supposed to make all-things-considered decisions but rather they should at least minimally take prior law into account. My book discussed numerous areas of constitutional law since the Founding and reached this conclusion: Because the Court functions much more like a political veto council than a court of law...the Supreme Court's power to overturn the important decisions of other governmental ...

by Neil H. Buchanan Plenty has happened in the ten days since I wrote my Dorf on Law column about Afghanistan.  One happy development is that there is now a reasonably significant chorus of people who are not buying the hawkish hype that the cable shows -- and even supposedly neutral reporters -- have been hyping.  Ezra Klein's NYT piece earlier this week is a good example of this positive genre.    I can thus happily admit that my headline-level assertion that "No One Knows Anything" is now demonstrably false.  It took some time, and there is still plenty of hawkish insanity out there.  Still, the conversation now includes at least a bit of clarity, honesty, and modesty. Of course, plenty of bad things have happened as well, the most obvious being the terrorist attacks at Kabul's airport yesterday that killed dozens of people.  And because the victims of those attacks include thirteen Americans, this goes beyond a human tragedy and becomes y...

  by Michael C. Dorf A new analysis indicates that over a quarter-million Afghans who worked with or for the United States during the last two decades remain in the country. Most of them will not be evacuated in the five days between now and the self-imposed and Taliban/ISIS-K-enforced deadline for withdrawal of all U.S. forces. We will have failed those people, with catastrophic, often fatal results. More than that, we will have wronged them by violating our agent-relative moral duties towards them. In moral philosophy, an agent-relative duty is exactly what it sounds like: a moral duty that you owe to particular individuals because of something about your relationship with them. Such duties can be usefully contrasted with agent-neutral duties , which we owe everyone. For example, your duty not to intentionally kill people (absent justification or excuse) is agent-neutral; you are obligated to refrain from murdering everyone. By contrast, your duty to provide food and shelter for...

by   Sidney Tarrow       When hundreds of enraged Trump supporters attacked the U.S. Capitol on January 6th, 2021, Representative Liz Cheney was approached by her Republican colleague, Jim Jordan. According to journalists Carole Leonning and Philip Booker, in their book I Alone Can Fix It (2021), Cheney reported: "While these maniacs are going through the place, I'm standing in the aisle and he [Jordan] said, 'We need to get the ladies away from the aisle. Let me help you.' I smacked his hand away and told him, 'Get away from me. You f---ing did this!'” ( Lonis, 2021 ).       Cheney’s accusation that Jordan “did this” was both true and false: Jordan and the Trump wing of the Republican Party were certainly complicit in the myth that the 2020 election had been stolen, which enraged the rioters on January 6th. But the attack on the Capitol that day was an insurrection by a social movement – not by a party. This was an insurrection that Donald Trump had ...

  by Michael C. Dorf James Carville famously described the politics of Pennsylvania as Philadelphia and Pittsburgh with Alabama in between. This trope fairly describes much of the United States. Wisconsin is Milwaukee and Madison, with Alabama in between. Ohio is Columbus, Cleveland, Cincinnati, and Toledo with Alabama in between. New York is New York City (minus Staten Island) and the upstate small cities of Albany, Buffalo, Rochester, and Syracuse, with Alabama in between. One might also add college towns to round out the description—as I can attest from personal experience: whenever I venture more than five miles outside Ithaca, I see multiple Trump yard signs—some left from 2020, others looking to 2024. Indeed, as Professor Buchanan observed when I made the point to him in an email last week, Carville's aphorism even describes Alabama itself, which is Montgomery and Birmingham, with Alabama in between. Carville's observation can also be seen in those maps that Donald Trump ...

 By Eric Segall I grew up forty-five minutes from Manhattan and worked for two summers as a law firm messenger in New York City. I also have studied, taught, and written about race my entire career. Yet, before reading Clint Smith's excellent new book How the Word is Passed: A Reckoning with the History of Slavery Across America ,  I knew little about New York's substantial role in the slave trade (which I discuss towards the end of this post). My purpose here is not so much to review Smith's pathbreaking book but to make a plea for everyone to read it.  In How the Word is Passed , Smith visits numerous places where slavery and segregation thrived and through fascinating stories, interviews, and reflections demonstrates with beautiful prose (the author is also a poet) how our present institutional racism is derived from our racist past. The book made me gasp out loud numerous times.

by Neil H. Buchanan To readers: Yesterday brought yet another example of the radicalization of Donald Trump's anti-democratic supporters -- followed by another bonkers response from one of the Trumpiest House members, which was in turn followed by the sound of crickets from Republican House leaders.   In light of this now-depressing new normal, for today's classic column, I was going to reprint the column in which I first used the phrase "the end of constitutional democracy" to describe the existential threat of Trumpism:" Is This the Beginning of the End of Constitutional Democracy in the U.S.? "  Verdict published that column ran on June 2, 2016, and I added a few more thoughts in a Dorf on Law column the next day . Although those columns still, in my completely unbiased opinion, stand up rather well more than five years later, I wanted to go back a bit further to find when I started writing about pre-Trumpian threats to the rule of law in the U.S., ev...

By Sherry F. Colb When my daughters were little, one of the books that I read to them before bedtime was The Giving Tree , by Shel Silverstein. The story involves a boy who, in today’s parlance, apparently suffered from a failure to launch. He seemed unable to go out into the world and get himself food or shelter. The Giving Tree always had something to offer the boy, and she (I am pretty confident that the tree is a she) was happy to do it. She gave him fruit, wood for building a home, and ultimately a place to rest when he had destroyed all but a remaining stump. I always found the story very sad, but I somehow missed the fact that the story—however well written and creative—is quite ugly and offensive. If I read it to children today, it would be as an example of how misogyny finds its way into “classic” writings.

 By Eric Segall In a forthcoming article in the Harvard Law Review titled “Originalism Standard and Procedure,” Professor Stephen Sachs continues his Arthurian quest to convince (not sure whom, academics, judges, philosophers, everyone) that originalism is indeed our law. This mission, which he and his frequent writing partner Professor Will Baude, have been on for a while, has generated numerous essays, articles, and blog posts sometimes referred to as the “ positivist turn ,” or “originalism is our law” originalism. In his latest Article, Sachs argues that originalism is a standard, not a decision procedure. In more common terms, he tells us that originalism is a “destination, not a route.”  Sachs says the point of borrowing the philosophical distinction between a “standard of rightness” and a “decision procedure” is to demonstrate, not that originalism is true, but that many arguments against originalism are wrongheaded. In his own words, “the uncertainty of our legal pa...

by Neil H. Buchanan Suddenly, everyone needs to talk about Afghanistan.  TV and print pundits who clearly know nothing about what is happening in that country -- including the supposedly sober-minded journalists who front straight news desks -- are all opining about what went wrong.  I am not saying that everyone is repeating the same stupid things, or even that everyone's take has been stupid, but there is certainly a lot of uninformed BS flying through the virtual air right now. Here at Dorf on Law , Afghanistan has hardly been a focus of our concern over the years.  Although we published ten or twelve columns about that country in some of the years in the 2007 through 2011 period, we (like almost everyone else) have said next to nothing at all about Afghanistan since then, even as our country's longest war dragged into the third decade of this millennium.  Our only mention of Afghanistan thus far in 2021 was in a column that I wrote in April discussing bothsides...

 By Eric Segall Justice Antonin Scalia passed away in 2016 but his legacy and the myths surrounding his jurisprudence still severely impact our politics and our law. Not long after his death, George Mason University received a large sum of money from private donors (including the Koch Brothers) to change the law school’s name to the Antonin Scalia Law School . Recently, Harvard Law School announced that it filled its outside-funded Antonin Scalia Professor of Law position. While running for President, Donald Trump repeatedly used the name Antonin Scalia to signify the kinds of judges he would appoint. There is even a play written about Scalia which was performed in the shadow of the highest Court in the land. These lavish testaments to the late Justice are deeply insulting to women, people of color, LGBTQ folks, and non-Christians, as well as dangerous perpetuations of the fiction that Scalia was a Justice worth honoring. What Scalia stood for the most was the privileging as ...

by Neil H. Buchanan   The long-overdue backlash against people who elevate their confused notions of personal liberty above the need to fight a catastrophic pandemic continues to intensify, with good reason.  My two most recent columns ( here and here ) explored the maddening recklessness now personified by the governors of Florida and Texas.   Especially in the latter column, I argued that this is not in fact a matter of balancing individual freedom against social harms, because the concepts of force, choice, and all of the other buzzwords that are being endlessly repeated by the antisocial right are deeply incoherent. There was a very good exchange on the comments board for that second column, with an especially important point offered by Professor Dorf, suggesting that I might have overstated my claim in a way that could seem to endorse the antisocial nihilism of Oliver Wendell Holmes's "bad man."  I will return to that important discussion later in this column,...

  by Michael C. Dorf New York Governor Andrew Cuomo's resignation is not yet effective. In announcing it, Cuomo said it would take effect in two weeks. Why not immediately? It's not entirely clear. Are there official papers Cuomo wants to pack up (or shred!)? The official explanation is that, given the pandemic, the additional time is needed to ensure a smooth transition. Maybe. The best explanation might be prosaic. Apparently Cuomo has no home other than the Governor's mansion in Albany. Maybe he needs the time to find an apartment. In any event, pretty soon Kathy Hochul, currently the Lieutenant Governor, will become Governor. That change raises a number of interesting questions about the costs and benefits of having an official understudy (whether it is the lieutenant governor of a state or the national Vice President) who is closely or distantly connected to the chief executive. In this essay, I'll discuss state and national offices somewhat interchangeably, even t...

by Neil H. Buchanan Years ago, a progressive economist (yes, they exist) was presenting a working paper to a full house at an academic conference.  She was discussing poverty, and her comments returned again and again to the claim that poor people were being forced to take dangerous and onerous jobs.  It was a sensible and thoughtful presentation, but toward the end of her remarks, an angry male voice boomed from the back of the room: "Who was it, exactly, that held a gun to their heads?" This story (which I have surely related before on this blog, but it is still a useful teachable moment) has always struck me as the perfect example of how orthodox economists' notion of force and choice is completely lacking in nuance.  You could have chosen to not work, so you had a choice.  Freedom!     Interestingly, however, the politicians who normally rely on that type of economic thinking have suddenly become convinced that the notion of choice is the exact opposit...

by Michael C. Dorf Hard cases make bad law. So goes an old adage. A hard case tests commitments to legal rules and standards, leading judges to bend or distort those rules and standards, thereby rendering them less useful for the mine run of what should be easy cases. Today I want to propose and explore a corollary: Some bad laws make bad constitutional law . I'll elaborate with respect to the recent ruling by Judge Fox issuing a preliminary injunction against the enforcement of an Arkansas law (Act 1002)  that forbids state or local government actors--including school districts--from mandating face masks, shields, or coverings. When the Arkansas legislature enacted Act 1002 in April of this year, COVID-19 cases were declining and there was some hope that mask mandates for the current pandemic would not be needed again. The law was nonetheless rash, given the possibility of a new disease outbreak or, as we have experienced, the spread of a more contagious variant. The legislature...

  by Michael C. Dorf The report commissioned by the NYS Attorney General into allegations of sexual harassment by Governor Andrew Cuomo is devastating. Thus far, however, Cuomo has resisted widespread calls for his resignation, even though they are coming from former political allies. What is Cuomo thinking? Here I'll explore some hypotheses, but I should say up front that none of them makes a whole lot of sense to me.

  by Michael C. Dorf As advertised here on the blog a week ago, yesterday I participated in the Practicing Law Institute full-day conference reviewing the last Supreme Court Term. It was the 22nd annual conference; as Dean Erwin Chemerinsky noted in his opening remarks, I have presented my views at each and every such conference. I quipped that this announcement made me feel old, to which Prof Burt Neuborne, also a participant from the beginning, responded, that it made him actually be old, which, I suppose, is true of me as well. It was, as always, a fruitful day. Interested readers--especially those in need of CLE credit--can view the recorded version here . (It's expensive, even though we panelists aren't paid, because PLI has a lot of overhead to manage to make these programs available.) Anyway, I'd like to use today's essay to discuss an issue that Dean Chemerinsky raised a couple of times during the day. He noted that in several of the Court's cases last Term...

by Neil H. Buchanan   Now that the renewed surge in COVID cases has put the health-care systems in many of the country's less-vaccinated areas (aka TrumpLand) into serious danger of collapse, and with health care workers walking away from their jobs in surprising numbers (leading to staffing shortages in hospitals nationwide), there is a growing sense that it is time to stop coddling the "vaccine hesitant" Americans who are directly causing this disaster. It would take hours to collect citations to all of the times just in the last two weeks when politicians and pundits have said, in one way or another: "This has to stop.  The vaccine refusers are making life for the rest of us worse, endangering not only themselves but also damaging the economy in which the rest of us would like to re-engage.  No more free riding!"   Even the governor of uber-Trumpy Alabama castigated the people who refuse to be vaccinated, saying that "it’s time to start blaming the unv...

  by Michael C. Dorf Building on a SCOTUSblog symposium , my latest Verdict column reflects on the lessons that the Supreme Court might glean from its telephonic oral arguments when it resumes in-person oral arguments. As I note in the column, the recent surge in COVID infections, hospitalizations, and deaths due to the Delta variant and the relaxation of masking and social distancing creates some uncertainty about when in-person SCOTUS arguments will resume, but one hopes the answer is not never. Likewise for classes at primary, secondary, and post-secondary institutions, including the one at which I teach. Cornell is requiring full vaccination of everyone on-campus, but given the potential for breakthrough infections and the vulnerability of the immunocompromised, I am somewhat uncertain about whether some or all of my students will be on Zoom for some period in the coming semester, which begins in less than three weeks. Surely teachers and administrators at kindergartens, day c...

Note to readers: The column below was first published on Verdict almost exactly a year ago, on August 6, 2020.  I am republishing it today because various Republicans (especially the governors of Texas and Florida) are cynically relying on simplistic economic arguments to justify not requiring masks, vaccinations, or anything else, even as the Delta variant devastates those states (and others).  In the column, I explain why even the most basic economic theory shows that "the invisible hand" of aggregated individual choice will most definitely not lead to the best public health outcome in a pandemic.      by Neil H. Buchanan As I write these words, the Trump White House and Republicans in the Senate are holding America hostage to an economic orthodoxy that they simultaneously misunderstand and misapply. Tens of millions of people are anxiously waiting to find out whether they will be able to pay for food and shelter next week and next m...

 By Eric Segall Note to readers: Continuing our brief mid-summer break here on  Dorf on Law , we offer this classic column from October 2018 discussing our most Senior Supreme Court Justice Clarence Thomas. Since I wrote this post, Thomas has called on the Court to reconsider some of its most important cases, such as New York Times v. Sullivan and Gideon v. Wainwright. Here he is in his own words discussing other major constitutional law issues, race, and how Justices should decide cases, among other topics--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 dri...