Dorf on Law

  by Michael C. Dorf [The following essay first appeared on the blog on July 3, 2017 under the title  Can Non-Sentient Entities Have Interests? (and Other Questions Raised by a Recent Review of Our Book) . I thought it an appropriate piece to re-post as the last classic of the year in light of the urgency questions about abortion have taken on post- Dobbs. I also thought it appropriate, as it reflects not only my views but also Sherry Colb's. The essay takes the form of a response to a book review, but it's more important as an exegesis of a view about when abortion is and isn't immoral, as well as about the proper relation between that kind of question and the law.] The latest issue of  Between the Species , an online philosophy journal, contains  a review  by Philosophy Professor Mylan Engel, Jr., of my book with Professor Sherry Colb,  Beating Hearts: Abortion and Animal Rights . (Engel's paper is styled an "article" because it is substantially long...

Note to Readers: For my final "classic" of the holiday season, I continue my theme of looking at the Republican Party in the years before its Trumpian turn.  From just over ten years ago (October 26, 2012), this column discusses what it means to be sociopathic in the political context and how the Republican Party had by 2012 already taken a dramatic turn toward antisocial dysfunction. Calling It As It Is -- Posted by Neil H. Buchanan In my new  Verdict  column,  published yesterday , I describe the current leadership of the Republican Party -- very much including Mitt Romney and Paul Ryan -- as "sociopathic."  Needless to say, I did not do so lightly.  This is not a matter of mere name-calling, where (for example) Obama-haters empty their limited thesauruses by calling him a communist, fascist, socialistic Kenyan.  All of these words actually have meanings, and sociopathy does as well. As I explain in my column, sociopaths display extreme anti-social t...

  by Michael C. Dorf Yesterday the Supreme Court--by a 5-4 shadow docket ruling--extended the stay previously granted by the Chief Justice of a DC Circuit decision that denied Arizona and other states intervention to defend the Title 42 protocols that deny asylum seekers entry into the U.S. via the usual process to which they're entitled. If you had on your Bingo card the Democratic appointees plus Justice Gorsuch dissenting (in a published dissent joined by Justice Jackson), congratulations. That was the lineup in Arizona v. Majorkas . The case as it reaches SCOTUS does not involve the merits. The Court stayed the DC Circuit judgment so that it could resolve only the intervention question following expedited briefing and plenary argument in February. As a practical matter, that means that the Title 42 protocols will remain in effect for now, even though yesterday's per curiam order states that it "precludes giving effect to the District Court order setting aside and vaca...

Note to readers: Frankly, it bothers me that there is nothing new to read or watch this week.  There is very little new content in the major papers, the late-night comedy shows are on hiatus, and pretty much everything else is on autopilot.  This is in part because both Christmas and New Years Day -- which are both legal holidays, notwithstanding (for the former holiday) the separation of church and state (or what remains of it) -- happen to fall on a Sunday this year.  But in any event, everyone seems to be on vacation right now. Including us!  Even Americans, who notoriously refuse to take time off, have decided that this is a dead zone.  But at least we here at Dorf on Law are willing to dig into our archives to find classic columns that resonate with current events.  With the post-midterms discussion having now turned to the once-unimaginable idea that the Republican Party might turn against Donald Trump, I am continuing my Classics theme (which I beg...

 By Eric Segall Many people aren’t working this week or working less, so as Mike and Neil explained yesterday and the day before, we thought it would be a good time to repost timeless essays. This one originally ran in 2015. It asks the question: “What would you do if you were a Supreme Court Justice?” Happy Holidays!

by Michael C. Dorf As Prof Buchanan noted yesterday , for the holidays, we hear at DoL will be running "classics," i.e., reruns. For your reading pleasure, below I reproduce an essay that first ran on Thanksgiving, 2013 . If you're starved for more recent content, you can also check out my latest  Verdict column:  Lessons from Sam Bankman-Fried’s Brief Stay in a Bahamian Jail . Okay, here's the classic: The True Meaning of Thanksgivingukkah Today is "Thanksgivingukkah," the extraordinarily rare--as in  once in 70,000 years --convergence of Thanksgiving and the first day of Hanukkah. The strange confluence has provided pundits with the opportunity to promote oddball recipes like turkey corpse cooked in Maneschewitz wine or sweet-potato latkes. For me, as both a vegan and an ethnically-identifying-but-non-religious American Jew, the coincidence of these two problematic holidays provides an interesting opportunity for reflection. I find that the two holidays ar...

Note to readers: Beginning today and running through the end of 2022, we here at Dorf on Law will be on our annual December hiatus, as part of which we will re-publish "classic columns" that strike us as relevant and useful reading for those among us who continue to want to engage with ideas over the holidays.  We will, as always, keep our eyes out for breaking news that could inspire and justify writing a new column between now and the 1st, but otherwise, we will be recharging our batteries and wishing all of you the best. by Neil H. Buchanan The column below was first published on August 6, 2009 -- less than three years after the birth of Dorf on Law .  Upon re-reading it, I was depressed anew at how obvious the slide toward authoritarianism has been all along -- long preceding Donald Trump's time in the White House -- and how much worse things have gotten only in degree, but not in kind. In the magazine business, what editors call a "big sentence" (a sentenc...

by Michael C. Dorf “Ours is not a system of justice where foot soldiers go to jail and the masterminds and ringleaders get a pass." -- Rep. Jamie Raskin (D., Md.), member of House Select Committee to Investigate the January 6th Attack on the U.S. Capitol, Dec. 19, 2022. -------- In the first years of the current millennium, Vice President Dick Cheney received considerable assistance from talented attorneys who offered at best extremely tendentious arguments for the lawfulness of what Cheney and others in the George W. Bush administration euphemistically termed "enhanced interrogation"--thus greenlighting a policy of torture. The main lawyers involved in the effort--David Addington (as counsel to the VP and known as "Cheney's Cheney"), Jay Bybee (Bush's first head of the Office of Legal Counsel), and John Yoo (Bybee's deputy)--were investigated but not prosecuted for war crimes by a Spanish judge and ultimately suffered only modest reputational conse...

by Neil H. Buchanan Human beings will not be recognizably human forever.  Does that undermine our moral obligation to protect future not-human beings from harm, where possible?  From my perspective, the answer is almost certainly no, but that is because I am an ethical vegan, a viewpoint that quite explicitly defines our moral obligations not exclusively toward humans but toward any beings capable of sentience and the experience of pain.  Humans evolved from apes, going back to trilobites and single-celled organisms, but even if that were not true, the life forms that exist today that meet the threshold of ethical veganism's concerns are still worthy of our moral respect and -- at the very least -- should not be killed or tortured for our own pleasure. I start today's column with this somewhat abstract observation because I want to return to the topic that, bizarrely, Sam Bankman-Fried's crypto collapse has suddenly made relevant: "effective altruism" (EA) and it...

 By Eric Segall This was a no good, terrible, very bad year at the Supreme Court of the United States. Here are my top ten worst moments of 2022 (in no particular order).  This post is not about how much I disagree with almost all of the big cases from 2022 but rather about the moments that should be a reminder to us all that the six conservative justices who now control the highest court in the land are just, well, terrible, even apart from their votes.

by Neil H. Buchanan If you are a smart, ambitious young person who wants to live a comfortable life, you can never go wrong by making it your business to tell rich people what they want to hear.  And what they want to hear is that they are gracious, wonderful paragons of virtue who deserve everyone's admiration and who should keep doing what they did to make all of that beautiful money. I am fairly certain that the first time I saw a version of that statement was in an article written by the all-time great political economy professor John Kenneth Galbraith ( also known for his critiques of "the conventional wisdom").  A short online search did not turn up a pithy quote, and it might not in fact have been from Galbraith; but in any event, the observation is plainly true.  One way to see this is by recalling the horrified response from the super-wealthy when Barack Obama hurt their feelings by saying that their financial activities might need to be regulated more effectiv...

by Michael C. Dorf Just a few months ago, Sam Bankman-Fried was the most prominent proponent and (self-described) practitioner of a certain brand of effective altruism . Does Bankman-Fried's arrest on federal fraud and conspiracy charges discredit effective altruism? Should it? Let's dig in. The term effective altruism refers broadly to the unassailable notion that in acting selflessly to benefit others, one should aim to do so effectively. For example, if you are deciding whether to make a $100 donation to either of two organizations that provide food and shelter to hungry unhoused persons, and organization A uses 100 percent of its charitable donations to provide goods and services whereas organization B uses 40 percent of donations to cover administrative costs (including high salaries for its executives), then, other things being equal, you should give your money to A rather than B. That "other things being equal" is important, however, because even with its much ...

by Neil H. Buchanan A friend of mine once said: "It's amazing that anything works.  Most planes don't crash and most buildings stay up, even though people are pretty much f*ckwits."  In some fields -- most obviously politics -- one can tell a very plausible story as to why the outright idiots (Marjorie Taylor Green, Louie Gohmert, Jim Jordan, et al.) and what we might call the idiot poseurs (Ted Cruz, John Neely Kennedy, Josh Hawley, et al.) begin to dominate a game played on a field defined by gerrymandering and voter suppression and their combined impact on party primaries. In most fields, however, one need not believe in an all-knowing Invisible Hand to imagine that somehow the more competent people will generally rise to the top.  Yes, there will be nepotism (Trump's kids) and family money buying credentials (Jared Kushner's acceptance into Harvard), but the post-World War II professionalization of the professions (yes, I meant to be redundantly redundan...

  by Michael C. Dorf A couple of weeks ago I described the challenge I faced writing a constitutional law exam in light of the recent (claimed) turn to history by the SCOTUS. I don't know whether I rose to the challenge, but I did write an exam. And while I grade my students' answers, you, dear reader, can try your hand at it. Note: Q1 is based on a case currently in the New York courts. Assume Myrontana is a state of the U.S.

 By Eric Segall The Justices are done hearing cases until January so it is time to take stock in what has been a  monumentally important year at the Supreme Court. There's a lot to talk about but this post focuses on one significant point: this was the year originalism became a four-letter word.  In June of this year, the Supreme Court of the United States issued four landmark decisions, all decided by 6-3 partisan votes. The Justices returned the issue of abortion to the states (and potentially Congress), dramatically enlarged gun rights, and weaponized the free exercise clause to require Maine to support parents of children in religious schools and to forbid a school district to punish a public-school football coach who on several occasions prayed at the fifty-yard line while he was still responsible for his students. All four Justices who identify as originalists joined (or authored) each decision, including Justice Alito, who used to mock originalism but now seems to...

by Neil H. Buchanan Shortly after the midterm elections, I wrote two complementary columns ( one on Verdict , the other here on Dorf on Law ) in which I argued that the prospects for the survival of American constitutional democracy had improved in several undeniable ways, even as the remaining avenues for a successful Republican effort to create a one-party autocratic state are distressingly undiminished. I then argued that Donald Trump continued to be the potential Republican presidential nominee in 2024 who most clearly could destroy democracy, precisely because he is the most likely to lose the election but then induce Republicans to exploit those remaining avenues -- one of which is a strategy called violence -- to overturn the results and install Trump as president. Even though I argued that avoiding that result would not save democracy for long, it was still important to say that Trump was the biggest danger, especially in the immediate term.  In turn, that would mean th...

by Michael C. Dorf The oral argument yesterday in Moore v. Harper lasted nearly three hours and yet various Justices seemed to be in so much of a rush--or simply wanted to interrupt the advocates before they finished answering the Justices' questions--that there was no time to make some important points, even as a great deal of time was spent on issues that aren't presented. Let's start with the biggest time waster. David Thompson, arguing on behalf of the North Carolina legislature, conceded for the sake of argument that the North Carolina Supreme Court gave North Carolina statutes and the North Carolina Constitution a permissible interpretation, regardless of what standard SCOTUS uses in these cases to review a state court's application of state law--whether the completely deferential test federal courts routinely apply pursuant to the Erie doctrine or the somewhat less deferential (but still deferential) test articulated by Chief Justice Rehnquist for himself and J...

by Neil H. Buchanan What's the matter with Kansas so much of the United States?  One of the enduring questions posed by the last few decades of Republican extremism is why so many people vote against their own interests in favor of the party of plutocrats. Thomas Frank turned himself from merely an excellent journalist into a brand name with his 2004 instant phenomenon: What's the Matter with Kansas?   What happened to the prairie populism that sent people from Kansas and other lightly populated states -- like Senators Frank Church of Idaho, Dick Clark of Iowa, Tom Daschle of South Dakota, and other center-left types in the second half of the Twentieth Century -- to serve in Congress?  Democrats used to be very competitive there, and although Kansas itself surprised everyone this year with a resounding defeat of an anti-abortion constitutional referendum in August and the reelection of their Democratic governor over a Trumpist Republican in November, the middle of the...

  by Michael C. Dorf Here on the blog last week, both Professor Segall (on Friday)  and I (on Thursday)  acknowledged that 303 Creative v. Ellenis-- which pits a web designer's free speech against same-sex couples' statutory right against discrimination--presents some difficult questions. Yesterday's two hours and twenty minutes of  oral argument in the case did little to make it much easier, even though some Justices (especially Alito, Gorsuch, and Kavanaugh) characterized the disagreement between the sides as fairly narrow. In a Verdict column tomorrow, I'll explore the costs and benefits of various ways in which the Court can try to decide the case without either gutting anti-discrimination law or effectively eliminating a right of expressive businesses to refuse to create works they deem odious. In today's essay, I'll address a few side points raised during the argument, beginning with the not-so-subtle signaling by the web designer's lawyer--Kristen Wa...

by Neil H. Buchanan Having written at length over the last few months about the looming political disasters that face us, I will use today's column to talk about something far less consequential, yet still (I hope) interesting.  The broad question for the day is how human psychological quirks are used in social and economic analysis.  The narrow question is why Lyft does not (seem to) have an option for non-a la carte purchases.  Is it possible, I ask with an almost-straight face, that "the market" is not completely efficient?  Gasp!

 By Eric Segall Next week the Court will hear oral argument in 303 Creative LLC  v. Elenis. This controversy involves a wedding website designer who does not want to extend her services to same-sex weddings despite a Colorado law requiring her to do so. The case is a hard one because it pits important principles against each other: the right of the people to free expression against the state's interest in non-discrimination. Mike wrote a thoughtful piece about the case yesterday.  The point I want to emphasize about this case is how useless originalism is to its resolution and that no one should pretend otherwise. To illustrate this futility, I will focus on an amicus brief  (in support of the Court hearing the case) written by a number of all-star first amendment and originalist scholars including Michael McConnell, Richard Epstein, Mark Scarberry, Larry Alexander, Robert George, Steven Smith, and numerous other constitutional law heavyweights. If they can't show t...

  by Michael C. Dorf Next week the Supreme Court will hear oral argument in  303 Creative v Ellenis , which poses the question that the Court ducked in the Masterpiece Cakeshop case in 2017: whether the application of a public accommodations law to a business owner who provides expressive goods or services violates the business owner's right to free speech where the goods or services convey a message of celebration of or support for same-sex marriage and the business owner opposes same-sex marriage? In Masterpiece Cakeshop the Court ducked the issue by deciding the case on the ground that members of the Colorado Civil Rights Commission expressed religious bias ( a dubious interpretation of the record, in my view ). Although 303 Creative also comes from Colorado, and although the plaintiff's certiorari petition sought review on issues of both religious liberty and free speech, the Court took the case to consider only the free speech issue. It's possible that the Cour...

By Eric Segall For over thirty years, I have had numerous personal and professional relationships with state court and lower federal court judges. The vast majority of them take their ethical responsibilities seriously, especially when it comes to accepting gifts from people with interests before them and deciding whom they may socialize with if they fear people may be seeking to influence them. Various state and federal ethics codes bind these judges, but in my experience, most judges simply think it is part of the judicial role to avoid, what virtually all judicial ethics codes call the "appearance of impropriety." That standard is codified in the Official Code of Conduct rules applying to " United States circuit judges, district judges, Court of International Trade judges, Court of Federal Claims judges, bankruptcy judges, and magistrate judges." The federal judges not covered by this Code are, of course, the Justices of the United States Supreme Court. Canon Tw...

by Neil H. Buchanan This past weekend was the big rivalry week in American college football.  As in the past, I find myself unable to break the emotional hold that this corrupt and ugly game has on me, so I watched and watched and watched.  Whereas in the recent past I would be tempted to write yet another column defending amateurism and pointing out that scholarship athletes have never been "unpaid," however, the situation has now gotten so completely out of hand that there is no point.  This is bad all the way down. So rather than discuss the fact that showering money on college players -- so openly that one "color commentator" spent several minutes during a game on Friday giving a star player unsolicited advice to  hold out for $7 million in "name, image, and likeness rights" from his university, to stop him from going to the NFL -- has not in any way fixed the deeply corrupt system (big surprise), I will focus on a different kind of ugliness.

  by Michael C. Dorf In a Verdict column last month , I decried the recent turn to history in SCOTUS cases involving unenumerated rights, firearms, and the Establishment Clause. I contended that, in these particular subject matter areas and as a general matter: history standing alone is too under-determinate to adjudicate contemporary constitutional controversies; therefore it will be used (as it was in recent cases) chiefly as a mask for decisions reached on ideological grounds; and unless the Justices are prepared to overrule just about all of their precedents, they will need some means of deciding when a case presents a novel question to be decided under the history-only rubric versus when a case presents a sufficiently interstitial question to call for the application of older precedents that are preserved per stare decisis . The turn to history presents a further problem that I raise here only partly tongue-in-cheek. It poses a serious challenge to those of us who teach consti...

[N.B. The following blog post first appeared on the day before Thanksgiving, 2014. We'll be back with new content on Monday.] by Sherry F. Colb In my  Verdict column  for this week, I discuss the case of  Warger v. Shauers .   Warger  involves  Federal Rule of Evidence 606(b) , which prohibits, among other things, the introduction of juror testimony in an effort to undermine the validity of a verdict.  The petitioner, Gregory P. Warger, wants to introduce a juror's testimony about a fellow juror's comment during deliberations,  not  as itself an error affecting the verdict but instead as evidence that the latter juror materially lied during voire dire and should never have been seated on the jury.  In my column, I consider whether the petitioner's distinction -- between prohibited juror testimony about a fellow juror's improper statements during deliberations and permissible juror testimony about a fellow juror's disclosure during delib...

 By Eric Segall Last week on this blog, Mike talked about how the leadership of the Federalist Society asked its co-founder Professor Steven Calabresi to not identify himself in that way when advocating certain legal positions concerning the so-called independent state legislature doctrine the Court is going to address later this term. In his final paragraph, Mike wrote the following: The Fed Soc website proclaims the 'duty of the judiciary to say what the law is, not what it should be.' Evidently, it also includes an implicit exception:  unless what the law is doesn't align with the ideological druthers or institutional interests of the Republican Party; then it's the duty of the judiciary to pretend the law is what we wish it were. Of course, we all know that the Federalist Society leadership is not interested in real judicial engagement with text and history but with political results they favor. But what about the judiciary and the legal academy? Is it possible to...

by Michael C. Dorf Last week, the Respect for Marriage Act (RMA) cleared the very substantial hurdle of a Senate cloture vote. Its passage now seems assured. Even if some of the Republican Senators who voted for cloture don't vote for the bill itself, it will surely garner majority support in the chamber. It will then go back to the House to vote on the amended version, and then to President Biden for signing. Is that a big deal? As I explain in my latest Verdict column , in the short run the RMA doesn't do anything, because the SCOTUS ruling in Obergefell v. Hodges protects same-sex marriage as a constitutional right. But as I also explain in the column, there is at least some reason to fear that the SCOTUS conservative super-majority might overrule Obergefell . I don't think that's likely, mainly on legal realist grounds; however, I don't find the reassurances that Justice Alito offered in Dobbs v. Jackson Women's Health very reassuring. My Verdict column de...

by Michael C. Dorf Until a couple of weeks ago, I hadn't much ventured into the literature of grief, mostly because I wasn't sure I could handle it yet. But I knew what would be first on my list: Joan Didion's The Year of Magical Thinking. Didion was a wonderful writer whose ironic yet realistic sensibility I deeply appreciate, so I took the plunge. The book--which recounts the year after her husband (author John Gregory Dunne) died of a sudden heart attack--spoke to me. The Year of Magical Thinking  takes its title from a number of episodes, most centrally Didion's inability to give away her late husband's shoes because  he would need his shoes if he were to come back to life.  I know exactly how she felt. It's not that you believe your dead husband or wife will return. It's not even  denial as a stage of grief. It's more a kind of disorientation. You see the familiar objects and they bring to mind their departed owner, which reminds you they're gon...

by Neil H. Buchanan There might not be much more to say about the 2022 midterm elections, although I do believe that the most important fact about our current situation -- that Democrats lost the House because of gerrymandering , full stop -- has been almost completely missed by the usual suspects. In any case, now that everyone is turning their attention to 2024, it is somewhat surprising that there was an almost ho-hum attitude in the press about Donald Trump's official confirmation of the obvious: that he is running for president again.  I knew that he had been hyping an official announcement on Tuesday, but I was not near a screen during his speech, and when I opened the apps for the The New York Times and The Washington Post at about 11am on Wednesday morning, reports on Trump's event were something like ten or twelve stories down the page. That does not mean that people will continue to ignore Trump, and it definitely does not mean that someone else will be the Republic...

by Neil H. Buchanan   "When the facts change, I change my mind - what do you do, sir?"  Even though John Maynard Keynes might not have uttered that sentence, it is a memorable and pithy way to say that we should be open to updating our beliefs if new evidence or arguments arise.  Fair enough.  And having quoted myself ( accurately ) dozens of times arguing that the United States is a "dead democracy walking," last week's midterm results offer an important opportunity to look anew at this country's political mess. After reassessing the situation, I sadly conclude that we are still almost certainly f*cked, but whereas I previously said that I merely hoped that a way out might emerge, I am now revising my assessment to say that there might finally be realistic, non-wishful reasons to believe that the country and the world could be spared an American descent into fascism.  Again, the worst outcome still seems very likely, but certainly less so than it did eight...

by Michael C. Dorf Scorning the tendency of some Republican appointees to succumb to what was once called the "Greenhouse effect,"--whereby they proved more moderate than expected or even liberal--Justice Clarence Thomas famously told his law clerks, "I ain't evolving." The quip captured two related sentiments: first, that Thomas was a committed conservative rather than a wobbly one or a closet liberal; and second, that he was unconcerned about what elite coastal liberals thought. The Greenhouse effect was after all, based on the hypothesis that the likes of Sandra Day O'Connor and Anthony Kennedy cared what Linda Greenhouse wrote about them in The New York Times . Both sentiments expressed by Justice Thomas were well justified and have proven true over time. Today's essay will focus on the second point, harnessing evidence from an order the Court issued yesterday in Ward v. Thompson . In that order, the Court, without opinion, denied an application for...

by Michael C. Dorf In a few weeks, the Supreme Court will hear argument in Moore v. Harper , which presents the Justices with their first opportunity to give plenary consideration to the independent state legislature (ISL) theory, according to which state legislatures can make and change laws governing congressional and presidential elections, independent of their state constitutions, state courts, and in the most aggressive version of ISL, of the governor. ISL is ahistorical and a potentially grave threat to democracy. Even as many Republicans grow weary of Donald Trump--not, mind you, because he is a lying, cheating, racist, sexist, evil man, but because he is bad for their political brand--Trump and Trumpism remain a very real threat to the continued existence of American democracy. His expected announcement tomorrow night of a third presidential run underscores the threat. Should SCOTUS endorse ISL in Moore v. Harper , Trump will have a path back to power that does not depend on h...

by Neil H. Buchanan So, you say there were some elections in the United States earlier this week?  How did that go?  As I wrote here on Election Day, we knew that tens of millions of people would vote for Republicans who are in the process of trying to turn America into a one-party state, while tens of millions of others (roughly half of all registered voters, it turned out) would not show up to vote against the party of insurrection.  That was an easy prediction, and it was accurate. Most observers also made what they thought was an easy prediction, which was that Democrats would be wiped out in this election cycle.  They were wrong.  The post-election group-navel-gazing has almost entirely involved marveling at how relatively well the Democrats did, with grand pronouncements from the usual pompous asses that " the fever is breaking " amid discussion that maybe American democracy is not in as much danger as we thought. Sadly, that is nonsense.  I agree wi...

  by Michael C. Dorf Yesterday the Supreme Court heard oral argument in  Haaland v. Brackeen and various consolidated cases. They collectively present constitutional challenges to the Indian Child Welfare Act (ICWA), a federal statute that in various respects supersedes state family law regarding foster care placements and adoptions of children who are members of federally recognized Indian tribes. Three main constitutional issues are presented: whether (1) ICWA falls within the scope of Congress's so-called plenary power over relations with and regarding Indian tribes; (2) whether the obligations that ICWA places on state and local child welfare agencies constitute unconstitutional commandeering of the state; and (3) whether ICWA obligates state courts (and/or other state actors) to use a suspect racial classification, thus triggering (and failing) strict scrutiny. In addition, there are threshold questions of standing, especially with respect to the state of Texas, which is...

by Michael C. Dorf As I hit publish this morning, we do not know the full results of the voting that ended yesterday. However, it appears likely that, even though Republicans substantially underperformed relative to expectations, they will end up gaining control of the House of Representatives by a modest margin. As of the early morning on November 9, the NY Times Needle gave Republicans an 83% chance of winning the House. If Republicans can flip seats in two of the remaining too-close-to-call Senate races, they will gain control of the Senate as well. At this point, Arizona, Nevada, and Georgia look like the battlegrounds for this 2-out-of-3-wins contest. In the event that Senate control turns on the outcome of what now looks very likely to be a Georgia runoff (again!), we on the blog will discuss that race in the coming month (presumably including coverage by our in-house Atlanta-based Prof Segall). What are the takeaways? I'll leave the fate of election deniers in state races f...

by Neil H. Buchanan My duties at the University of Florida include being the law school's Director of Global Scholarly Initiatives, which requires that I spend each Fall semester researching in a foreign country.  This Fall's home base has been Vienna, where there was a national election last month.  That election was completely unremarkable by 21st Century standards, with the Austrian neo-fascist right (the local version of Marine Le Pen's bloc in France) losing in a landslide to the center-left (former Green Party) president.  Election Day was barely noticeable, and other than very standard campaign posters (head shots of candidates above short slogans), one would not have known from walking around the city that anything was happening. And then there is the United States.  Via the interwebs, I have been staying on top of the situation in my home country, where the situation looks quite grim.  I will write a column soon about political violence (and the likeli...

by Michael C. Dorf Here on the blog last week, Professor Segall's critique of originalism referred to a recent order issued by U.S. District Judge Carlton W. Reeves in a case presenting the question whether the federal proscription of possession of firearms by felons unconstitutionally infringes the Second Amendment. Judge Reeves asked the parties to address the question whether to appoint a historian as a "consulting expert" to provide objective evidence. Arguably Judge Reeves was simply trolling the Supreme Court. Consider that his explanation for why he felt ill-equipped to perform the historical analysis demanded by Justice Thomas's majority opinion in NYS Rifle & Pistol v. Bruen  relied chiefly on Justice Breyer's dissent in that case. Judge Reeves pointedly added that judges "are not experts in what white, wealthy, and male property owners thought about firearms regulation in 1791." Zing! Whether or not Judge Reeves was just trolling Justice...

 By Eric Segall In my 2018 book Originalism as Faith , after canvassing numerous different and often conflicting forms of originalism, I argued that many originalists hold on to the idea that text and history should be used by judges to resolve hard constitutional cases because they could not accept the realist critique that the Supreme Court's decisions are ideology or values all the way down. I also suggested that on the ground originalism did very little work in generating decisions by courts and that the theory was mostly an after-the-fact rationalization for decisions made on other grounds.  With the addition of three alleged originalists to the Supreme Court and a host of so-called originalists on the lower courts, we have now seen much more originalism in action that we saw prior to 2018. The pinnacle of this movement came last June in New York Pistol & Rifle Ass'n. v. Bruen , in which the conservatives signed an opinion by Justice Thomas instructing courts to under...

by Neil H. Buchanan One of the most predictable debates in any campaign season pits the Democrats who want to focus almost exclusively (or even entirely) on so-called kitchen table issues against those who want to spend some amount of time talking about social issues that are purportedly non-economic. Careful readers of the previous sentence surely noticed that although I called this debate predictable, I described it in a relatively unusual way.  First, the Democrats who express concern about social issues do not -- and never have -- been absolutists about their side of the debate.  People who want to talk about racism, sexism, and other such issues have always been willing to say that of course standard economic issues are important and must be considered, asking only for some consideration of issues that affect marginalized groups (groups that add up to more than half of the population, even when only gender is considered).  Meanwhile, those on the other side of the ...

  by Michael C. Dorf During the oral arguments in the University of North Carolina and Harvard affirmative action cases, various of the conservative Justices pushed the programs' defenders on what race-neutral steps the colleges had been taking to achieve greater student-body diversity (in particular to boost enrollment of African American, Latinx, and Native American students). These Justices appeared to accept the argument by the lawyers for Students for Fair Admissions (SFA) that the Constitution and Title VI contain a kind of exhaustion requirement: before colleges may use race as a plus-factor in admissions, they must exhaust race-neutral means of achieving racial diversity. Much of the discussion on this point focused on admissions preferences for varsity athletes (A), legacies (L), children of large donors (D), and children of current university faculty and staff (C), collectively abbreviated as ALDC preferences. The record with respect to ALDC preferences was stronger for...

  By Eric Segall Here are my top ten observations (in no particular order) about the affirmative action oral arguments from Monday. 1) No one seemed to care that the University of North Carolina is only 8% Black in a state where Blacks make up 21% of the population. These facts seem important to me. 2) Justice Gorsuch really, really hates the sport of squash. If you didn't listen, don't ask. 3) No one seems to care that the Massachusetts legislature is only 2% Black while the state is 9% Black. These facts seem important to me. 4) The conservative Justices asked almost no questions about the original meaning of either the 14th Amendment or Title VI. I think we all know why. 5) The conservative Justices seemed obsessed about the statement by Justice O'Connor in Grutter v. Bollinger that she expected affirmative action to not be needed in 25 years. At my law school a few years ago, she said unequivocally she meant that sentence as aspirational and that too much has been ma...