Dorf on Law

Note to readers: This is my final column of 2021, and there truly is no alternative but to re-post the column that I wrote on January 7, less than a day after Trump-incited seditionists stormed the U.S. Capitol in an attempt to overthrow the government and the Constitution.  Now that this horrible year is almost over, even my game attempt at optimism in the final full paragraph of that column seems hopelessly naive.  Nonetheless, I will end here as I did on January 7: Peace!     by Neil H. Buchanan   The United States, I have suggested more than once, is quite possibly a "dead democracy walking."  After returning to that metaphor in a column barely more than a month ago, I wrote : "If we are too far gone to prevent the worst from happening -- if the end is only a matter of time -- then the best we can do is to prepare for what is inevitable.  The beginning of such preparation is a clear-eyed assessment of where things stand, understanding why it seems certain tha

By Eric Segall There are so many things disturbing about Justice Samuel Alito that it is hard to know where to start. I will get to this year's term below but let's begin with the fact that from his confirmation in 2006 to the day Justice Kennedy retired in 2018, according to Adam Feldman of the Juris Lab, not once did Alito vote with the liberals in a 5-4 case. Not once. That statement is not true for the three other most conservative Justices--Thomas, Scalia, and Roberts--who served during that period. Off the Court, as I previously documented here , Alito has made unethical speeches to the Federalist Society and Catholic organizations lamenting the threat to religious "liberty" allegedly caused by the Court's gay rights decisions while cases raising that very tension were/are percolating in the lower courts. And who can forget his infamous mouthing of the word "no" during a State of the Union Address by President Obama? But it was in 2021 that Ali

Note to readers: The middle of the week between Christmas and New Year's Day is the time for Dorf on Law classics.  T oday and Friday, I am posting a pair of columns that discussed the January 6 certification process for the 2020 presidential election.  Today's column ran on December 16, 2020, three weeks before the session; and Friday's ran on January 7, 2021, the day after.  Note that in the final paragraph of today's classic, I refer to the then-upcoming certification vote as a "nonserious" event.  It was nonserious, as a legal matter.  But we now know that it was extremely serious in every other way.   by Neil H. Buchanan Mitch McConnell made news yesterday by acknowledg ing on the floor of the United States Senate what every sane person has known for weeks: "Today, I want to congratulate President-elect Joe Biden."  This is a big deal only because McConnell had insisted on silently abetting Donald Trump's attempted coup over the past

 by Sherry F. Colb I recently watched and very much enjoyed the television mini-series Dopesick . It offers a (barely) fictionalized account of the unbridled greed of Purdue Pharma and the Sackler family. The story was recently in the news again when a federal judge overturned a bankruptcy settlement that had mostly shielded the Sacklers' personal assets from lawsuits against the company and its shareholders. The Sacklers themselves, the greedy people who marketed poison to the masses in order to get richer, may therefore have to pay out of their own pockets for some of the damage that they did.  The story involves a drug called Oxycontin, an opioid that Purdue Pharma (i.e., the Sacklers) claimed was not addictive. The company sent out drug representatives to market Oxycontin ("Oxy") directly to doctors. In the show, a kind and decent doctor played by Michael Keaton prescribes the drug because he believes what the rep has told him: the Oxycodone in Oxy is coated and ther

 by Sherry F. Colb During the Supreme Court argument in Dobbs v. Jackson Women's Health Organization , Justice Barrett asked the Mississippi Solicitor General, "Would a decision in your favor call any of the questions--any of the cases, sorry, that Justice Sotomayor is identifying into question?" Justice Sotomayor had expressed the concern that overruling Roe v. Wade would call into question other substantive Due Process cases like Griswold v. Connecticut (married contraceptive use), Lawrence v. Texas (same sex relationships), and Obergefell v. Hodges  (same sex marriage) . The Mississippi Solicitor General said no, invoking two reasons. The first had to do with stare decisis  and reliance interests. The second reason was that "none of them [ Griswold, Lawrence, Obergefell ] involve the purposeful termination of a human life." Most people listening to this exchange understood that to be a lie. The State of Mississippi almost certainly will not stop at prohibi

by Neil H. Buchanan In the category "Most Relentlessly Pessimistic Columnist," I would probably be the John Oliver of the Downer Awards.  My pessimism about the political situation in this country has been on ready display at least since mid-2016 (no coincidence there), but in fact I have been watching with dismay for most of my adult life as the steady march of movement conservatism -- abetted and even worsened by Bill Clinton/Tony Blair style capitulation -- has made it nearly impossible to imagine anything but a bad outcome.  I concede that I was briefly willing to think positively from about 2006 through 2010, but that ended up being more about hope, with the change being an enormous backlash and acceleration of previous negative trends. My column here on Dorf on Law yesterday was another in a long line of pieces (Tuesday's Verdict column being another example) in which I excoriated the wimpy centrists and center-lefties in the U.S. for their unwillingness to wake

by Neil H. Buchanan   There are plenty of reasons for people to live in denial.  Indeed, some element of denial is required to allow us to function in even the most basic aspects of our lives.     The thing that we call money, after all, is a convention based on (nearly) everyone's willingness to pretend that money has value and is not just worthless pieces of paper along with bits of data in cyberspace -- a belief that becomes self-fulfilling and thus valid only when enough people believe it.  As I put it almost nine years ago, pretending that money is not imaginary constitutes a "group delusion" that is absolutely essential for a modern economy to function. Even more fundamentally, what would happen if people were no longer able to compartmentalize knowledge of their own mortality?  At some point growing up, we become aware of the inevitabilities of our universe, but in various ways we figure out how to proceed without spiraling into despair.  As people grow older, s

  by Michael C. Dorf A recent story in the NY Times reveals how Time Magazine's Person of the Year Elon Musk repeatedly over-hyped the self-driving abilities of Tesla's cars and pushed engineers to design the company's "autopilot" features to rely solely on cameras even though most experts in the field believe that self-driving cars should combine visual input with radar and/or lidar (similar to radar but using lasers). In today's column, I want to raise some questions about the real and imagined virtues of self-driving cars and also say a few words about the transition to them. If you're wondering what expertise I have for this exercise, the answer is: very little; I own and drive a car that has some electronic assistance and self-driving features (a fairly awesome fully electric Ford Mustang Mach-e, about which more below); and as it says right at the top of the blog, DoL  provides commentary on law, politics, economics, and more . Today is a more  day.

by Sherry F. Colb The New York Times recently featured a very disturbing story . Some people have been operating a web site that encouraged suicidal visitors to the site to kill themselves, including giving them instructions about how to do it. A bereaved mother spoke about losing her teenage son to suicide and learning later that he had been one of the many people to visit the website in question. As her son died, other online visitors encouraged him to continue what he was doing if he wanted to be a successful rather than an attempted suicide. His audience had also suggested the method that he used, and it was common enough to be known by its initials (identified in the podcast accompanying the written story but which I choose not to repeat here).

 By Eric Segall On November 5, 2021, The Occupational Safety and Health Administration (OSHA) issued an emergency order  to protect the health of employees by mitigating the spread of the historically unprecedented Covid-19 virus. The order requires that employees of companies with over 100 workers either be vaccinated or wear a protective face covering and take weekly tests but also provides employers various methods to choose the best policy implementing those requirements. The day after the rule was issued, the U.S. Court of Appeals for the Fifth Circuit, of course, stayed the emergency order pending judicial review, and it renewed that decision in an opinion issued on November 12. After similar cases were filed around the country, they were all consolidated into one piece of litigation pursuant to several federal rules of civil procedure, and then by lottery the cases were assigned to the Sixth Circuit. Yesterday, a panel upheld the rule with two judges in the majority (Stranch &

  by Sidney Tarrow In response to former President Trump’s continued lies about voter fraud, legislators across the country are aggressively attempting to limit voting access and roll back the gains of an election conducted during a deadly pandemic. These proposed bills will make it harder to vote, target voters of color, and take aim at the very election changes — such as mail voting — that made the 2020 election not only successful but possible. According to a Brennan Center Report , as of September 27, lawmakers had enacted at least 33 laws with restrictive provisions in 19 states. Overall, legislators had introduced more than 425 bills with restrictive provisions in 49 states. The most chilling prospect for the 2022 and 2024 elections is the army of MAGA movement activists who – at the urging of Steve Bannon – have been signing up to serve as poll watchers in competitive states across the country. On his War Room podcast, Bannon proposed in May: “It’s going to be a fight, but this

by Neil H. Buchanan Is it a bad thing that fewer and fewer people own their residences?  Not necessarily, but as with all such questions, it depends on how well governments (federal, state, and local) structure and regulate the market for renting houses.  And as with all issues of legal structuring and regulation, the United States is failing miserably to protect people from powerful, ruthless predators. Perhaps surprisingly, there is nothing inherently exploitative or even problematic about a situation in which people rent houses and apartments from non-resident owners.  It could, in fact, be a very good thing for everyone involved, and for our economy and society overall, for fewer people to own their own houses.  The problem is that this market can all too easily be allowed to operate in a way that makes renters easy pickings for those who have no boundaries or ethical limits. This column is motivated by a piece in yesterday's Washington Post , " This block used to be for

 by Sherry F. Colb I have lately been thinking about the world that our newly constituted Supreme Court will leave to us. These are the people who believe the free exercise of religion means the right to penalize other people for violating your religion (no cake for you Masterpiece Cakeshop v. Colorado Civil Rights Commission , no foster children for you Fulton v. Philadelphia ). This view of "free exercise" really confuses the legitimate practice of one's religion with theocracy. The free exercise of religion also now entitles you to expose your neighbors to deadly diseases in violation of public health orders ( Tandon v. Newsom ). This particular religious freedom sounds like a radical libertarian vision, especially when combined with what a majority of Justices think about the right to bear arms . I regard this kind of libertarianism as dystopic. The government, I think, has a legitimate role to play in preventing us from discriminating against one another on the basis

 by Sherry F. Colb During the oral argument in the Mississippi abortion case , Justice Thomas at one point asked Julie Rikelman a seemingly irrelevant question. He alluded to a Supreme Court case, Ferguson v. City of Charleston , in which the state collaborated with obstetricians to invade the privacy of pregnant women. The state suspected the women of fetal endangerment through the use of illicit drugs.  Justice Thomas was like a little boy in a candy store. He could see that his dream of allowing states and the federal government to force women to remain pregnant and give birth against their will was poised to come true. If viability would no longer serve as a boundary between the government and women's uteruses and vaginas, then what was to stop the government from punishing women for being addicts or for ingesting foods and drugs that could harm the raw material that the handmaids had been conscripted to turn into babies? Hoping to get back to the subject of abortion, Rikelman

by Neil H. Buchanan To begin with a topic that is not directly related to this column, I should not fail to note the recent announcement that the debt ceiling issue has apparently been resolved until after the 2022 midterm elections. There might or might not be more to say about the specifics of that deal when the vote is finally taken, but this appears to be good news -- not only for the country and the world but for Professor Dorf and me, as we are now freed to write about other matters. In any event, this column is the concluding half of a two-part essay that I began last Tuesday. There, I argued that there is a distinct problem on the left-leaning side of American media coverage, but it is different from the (much bigger) problem on the right. Whereas the Fox-iverse simply makes up lies about Democrats and anyone else who disagrees with them, the non-Trumpy media that can fairly be identified as "liberal" in the American sense -- mostly obviously MSNBC -- makes mistak

  by Michael C. Dorf Today SCOTUS decided the Texas SB8 case , rendering what looks superficially like a split decision. Justice Gorsuch, writing for a majority on this point, said that the abortion providers' lawsuit is "permissible against some of the named defendants but not others." Yet, as I'll explain very briefly here, that's highly misleading for two reasons. First, the defendants against whom the majority allows the case to proceed are licensing officials who, eight Justices concluded, have some enforcement authority with respect to SB 8. Whether that is a correct reading of SB 8 is unclear. Justice Thomas, in dissent on this point, says that SB 8 could be read as disclaiming any such authority. But even accepting the majority's reading of SB 8 as correct, Justice Sotomayor is surely also correct that in future legislation in Texas and other states, lawmakers who want to ensure that they close the door to anticipatory relief in federal court will now

 by Sherry F. Colb One of the pro-compelled-pregnancy-and-birth arguments that have been circulating in the wake of  Dobbs v. Jackson Women's Health Organization  responds to the claim that abortion can benefit children. The latter argument holds that sometimes a woman's existing children stand to gain from their mother's decision not to expand the family. Indeed, some argue, the new child that would exist if the state forced the woman to remain pregnant and to give birth against her will might suffer as a consequence both of being unwanted and as a result of whatever circumstances led the mother to want an abortion. Lately (and at various points in the past), I have encountered a superficially appealing reply: the child who is now alive but would have been dead if their mother had had an abortion is obviously better off alive. Even if the other children in the family suffer some for having an additional sibling, the argument continues, the extent to which they suffer canno

  by Michael C. Dorf From its inception, DoL has received occasional obnoxious comments. For a while, the comments section was even overwhelmed by spam from "spellcasters. " Nonetheless, for nearly all of the now more than 15 years this blog has been in existence, we have received mostly thoughtful engaging comments. Often they disagreed with either the main point or a supporting point that I or one of my co-bloggers made in the original post, but they usually did so respectfully. Some combination of shaming, ignoring, and appealing to commenters' better angels sufficed to rein in those commenters who were sometimes less respectful. Alas, of late we have been flooded by contributions from refractory pseudonymous and anonymous commenters mixing some combination of gross mischaracterization or misunderstanding of the main post, insult, and meandering long-windedness about tangents that bear little or no recognizable connection to the main post. Sometimes one finds the hint

By Eric Segall During the Supreme Court's oral argument in Dobbs v. Jackson Women's Health Organization  last week, there was relatively little mention of constitutional text. For over 50 years, conservative critics of Roe and Casey  have argued that these cases were wrongly decided because the right to terminate a pregnancy is not in the Constitution.  Yet, during the Dobbs argument, the conservative Justices seemed to just assume that Roe and Casey were incorrect and argued instead about whether viability is an appropriate or arbitrary line (Roberts), whether changes in adoption access undercut abortion jurisprudence (Barrett), and whether the states could criminalize reckless behavior by pregnant women (Thomas). But arguments about or referring to constitutional text were largely absent. One explanation for the lack of substantial discussion about text by the Justices might be that they agree with Professor Ilya Somin who recently argued over at the Volokh Conspiracy that,

by Neil H. Buchanan Buried within a (very necessary and welcome) recent response to Republicans' attempt to overstate consumer price increases and to blame them all on President Biden, one of MSNBC's hosts (Joy Reid) offered this : "Republicans are seizing on inflation and blaming Joe Biden for it personally, which is a fun twist after Republicans and Trump maxed out the national credit card on tax cuts for the super-rich and a partial wall that Mexico was supposed to pay for."   When I emailed that link to myself, I added this memo: "Another dippy lefty media type just grabbing onto something random that sounds useful in the moment."  I will explore this further below, but my overall point in this column is a larger one.  Attacking the media for supposedly having a leftist bias is a favorite pastime on the American right, as it has been for decades.  Complaining about media sloppiness and laziness, as well calling them out for being easy marks for Republica

by Sherry F. Colb Since the topic of abortion is all over the news, I want to take this opportunity to address one of the many lies that people who wish to force women to carry unwanted pregnancies to term and to give birth tell. The lie is the idea that women who have abortions suffer all manner of psychiatric fallout, including abortion regret syndrome. Even Justice Kennedy, who was actually capable of compromise, said the following in Gonzales v. Carhart : " While we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained."

by Neil H. Buchanan   Having returned two days ago from spending Fall semester in the UK, I am still jet-lagged and not able to write a normal column for Dorf on Law today.  As it turns out, however, this was a good week for me to be disengaged.  After all, the big story of the week was the Supreme Court's oral argument in the anti- Roe case, and Professors Colb , Dorf , and Segall have already ably and extensively commented on that debacle.   Even if I had been able to fully engage this week, I suspect that I would not have had much to add to their analyses.  In this very short entry, therefore, I want to return to an abortion-related question that I posed in a column three months ago.  I wrote : Republicans' commitment to devolved federalist power -- so-called states' rights -- has never been anything but opportunistic on any policy question.  Even within that hailstorm of hypocrisy, however, their commitment to "letting the states decide" abortion's

 by Sherry F. Colb For a long time, I have used the phrase pro-life to refer to people who believe that the government ought to be able to force women to remain pregnant and give birth against their will. My reason for this usage was to show respect for people who in good faith disagreed with me on a difficult and painful issue. I now believe that I made a mistake. The phrase "pro-life" is now and always has been little more than propaganda that distorts the nature of the abortion debate.  Another bit of propaganda, more subtle than "pro-life," is "unborn child" or "the unborn." Language matters, and these two phrases together contribute to an overall picture that bears almost no relation to reality. Since the oral argument on Wednesday betrayed little of the reticence that once characterized the folks who want to force women to remain pregnant against their will, I will henceforth speak in accurate terms about the stakes in the abortion contest.

 By Eric Segall If you are reading this blog, you know that the most important abortion case in 30 years was argued this morning at the Supreme Court. As expected, precedent was a major issue (especially for the liberals) while the location of where the right to terminate a pregnancy comes from was a major topic for the conservatives. Below are lowlights from the argument, which was much more theater than legal or even policy discussion. At the bottom of the post, I offer a few predictions about what is to come. 

  by Michael C. Dorf During the just-concluded oral argument in the Mississippi abortion case, the Chief Justice seemed to be searching for a middle ground. I'll write up a brief summary of the opinion I think he'd like to write, then point to three very serious problems with it. Chief Justice Roberts delivered the opinion of the Court:  In Roe the Court said in what was dicta that the state may not forbid abortion before fetal viability. Casey , which also did not directly implicate viability, purported to reaffirm that line, even as it discarded the trimester scheme that had been central to Roe . Viability is not, however, central to Roe  or a sensible line. A woman's interest in being free from an unwanted pregnancy exists before and after viability. So does a fetus's interest in life. We nonetheless recognize the reliance interests of society and the interest in gender equality that undergirds the abortion right. That right is a right to choose. Accordingly, in plac

  by Michael C. Dorf The oral argument in Dobbs commences in a few hours. Prof Segall and/or I will be back either later today or first thing tomorrow with some instant analysis. Meanwhile, by way of further preview, I want to respond to some scattered pushback against one of the claims I made in my blog post on Monday . There I argued (among other things) that the amicus brief of Senators Hawley, Cruz, and Lee is peculiar in that it is almost entirely directed against the undue burden test adopted by SCOTUS in Planned Parenthood v. Casey , even though the flaw that the Fifth Circuit found in Mississippi's Gestational Age Act is that by outright forbidding most abortions before 15 weeks, the law violates the prohibition on pre-viability bans, and that prohibition was not introduced by the Casey Court as part of the undue burden test; rather, it is the part of Roe v. Wade that the Casey Court reaffirmed. Thus, I said in Monday's blog post that the focus on the undue burden test