Dorf on Law

  by Michael C. Dorf On Wednesday of last week, SCOTUS heard oral argument in Arizona v. San Francisco . After providing an account of the case, I'll raise a question that was suggested but not fully explored during the argument: Can a new administration acquiesce in a judicial ruling it believes is wrong as a legal matter but consistent with its policy druthers in order to short-circuit notice-and-comment rule making? So yes, today's essay is an 11 on a 1 to 10 scale of wonkishness.

by Neil H. Buchanan   With Vladimir Putin now unmistakably threatening to use nuclear weapons if he is thwarted in his takeover of Ukraine (and who knows what other countries), this is a grim day indeed.  The horrors happening in Eastern Europe necessarily dominate the headlines, and we all hope for the best while having a difficult time even fathoming what "the worst" might be. Perhaps as a matter of denial or distraction, but mostly because I have no expertise in matters of war and peace, this column is not about any of that.  I will, instead, focus on what in any other time would be very big news: the Republican Party has admitted at long last that it is the anti-Robin Hood party.  If the world survives Russia's military assault, this will be a moment worth remembering, because the rich are not only going to continue to get richer, but Republicans are now even more unmistakably targeting the poor for further immiseration.  

  by Michael C. Dorf The Soviet Union was a founding member of the United Nations in 1945. Interestingly, in a move that gave the Soviets three rather than just one seat in the UN, so were two Soviet republics. After the breakup of the Soviet Union, Russia took the primary Soviet seat (including as a veto-wielding permanent member of the Security Council), while the successors to the other two Soviet seats were Belarus (now reduced more or less to a Russian puppet) and Ukraine (currently the victim of Russian aggression). As a member of the UN, Russia has bound itself to the  UN Charter , which states, in Article 2, Section 4: "All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations." Accordingly, Russia's invasion of Ukraine, its recognition of independence for Luhansk and Donetsk, its pri...

by Neil H. Buchanan The fad of the moment is to fault Democrats for being "out of touch" with the presumed concerns of regular folks, who are supposedly turned off by "wokeness" and other right-wing tropes that the political media has uncritically adopted.  Washington Post columnist Jennifer Rubin calls these dire warnings to Democrats "tough love," saying that "[p]ollsters, analysts and campaign leaders are telling them they have overreached and ignored the legitimate cultural concerns of voters."   Although Rubin does not buy into the framing as much as others do, she is still amplifying a false narrative.  The idea that Democrats might lose in November's midterms because of "cultural concerns of voters" is both nonfalsifiable and an attempt to move the party away from what are in fact popular and easily defended positions.   But no, say the grim "facts don't lie" scolds, most recently evidenced in a study from th...

 By Eric Segall Last Friday and Saturday I attended the 13th annual Originalism Conference at the University of San Diego. There were seven papers presented by legal academics and discussed over two days in a room full of approximately 45 self-identifying originalists, two non-originalists (myself and Professor Tom Colby), and one person who as a matter of self-identification straddles the line (an ice storm in the Midwest and Covid issues led to slightly fewer non-originalists at the conference than usual). For the record, my guess is that most of the professors there were members of the Federalist Society, though that organization had nothing to do with the conference.  I commented on six of the seven papers and, as you'd expect, most of what I said was critical of originalism in general and the way the papers used originalism in particular. Although there was the expected pushback from almost everyone in the room, the conversations were friendly, civil, and I think helpful ...

  by Michael C. Dorf On Friday, the Supreme Court granted certiorari in Biden v. Texas , setting an expedited briefing schedule that will result in an oral argument this April. A federal district court forbade the Biden administration from terminating the Trump administration's "Migrant Protection Protocols" (commonly called "Remain in Mexico" but which I'll abbreviate as MPP) under which undocumented immigrants presenting themselves at the southern border for admission as refugees or otherwise are temporarily removed to Mexico to await a hearing to determine their eligibility to enter the United States. The US Court of Appeals for the Fifth Circuit denied relief from the district court order. The case presents two basic questions: (1) Whether MPP is required by statute?; and (2) whether the Fifth Circuit rightly rejected detailed memoranda memorializing the work done by the Biden administration's Department of Homeland Security to strengthen the case ...

  by Michael C. Dorf After Justice Sotomayor, who serves as the Second Circuit Justice, rejected an emergency application from plaintiff NYC Dep't of Education employees challenging a vaccination mandate, the plaintiffs refiled (as is their right) with Justice Gorsuch , who in turn referred the petition to the full Court for consideration at its March 4 conference. The case presents some procedural questions about whether the defendants and trial court have been complying with an earlier appeals court ruling in the case, but I mostly want to bracket those issues to focus on the core claim of religious discrimination. As the Second Circuit found, the policy as originally written is neutral on its face; it provides no religious exceptions but neither does it provide exceptions on secular grounds that might be a baseline against which one could argue that the absence of religious exceptions is discrimination against religion. A teachers' union objected to the absence of religiou...

by Neil H. Buchanan   What about the children?  Won't somebody please think of the children!   With all due respect to the fictional Mrs. Lovejoy, the problem is not that no one is thinking of the children.  The real problem is that people have no idea how to think intelligently about the children (or much else).  Combine that with general innumeracy, and we almost always find that the people wringing their hands about the fates of our young people are engaged in projection, wishful thinking, or simple political opportunism. In my writing over the years about intergenerational justice (one of dozens -- if not hundreds -- of examples here ), I have noted many times that anyone can turn any argument into a "for the good of the children and grandchildren" heart-string tugger.  And I do mean anyone making any argument.  Just this week, reports emerged about the mayor of a small town in the state of Washington who is a believer in a conspiracy that goes...

by Michael C. Dorf Yesterday, the jury hearing  Palin v. New York Times rejected Sarah Palin's claim that the New York Times defamed her when it falsely stated in a 2017 editorial (that it subsequently corrected) that Palin's promotion of a map showing congressional districts in crosshairs had inspired Jared Loughner to shoot Congresswoman Gabby Giffords. Presumably the verdict was based on the jury's conclusion that the Times did not act with "actual malice" -- the high threshold for liability to a public figure or public official under the First Amendment as construed by  NY Times v. Sullivan  and subsequent cases. That's that, right? Hopefully so, but perhaps not, thanks to an unforced error by SDNY Judge Jed Rakoff, who presided over the trial. On Friday of last week, Judge Rakoff sent the jury to deliberate. On Monday, before the jury had concluded its deliberations, Judge Rakoff told the lawyers and parties that he had reached a conclusion: If the jury c...

by Neil H. Buchanan   Last Friday, a Washington Post news article ran under this headline: " House aides weigh deficit reduction as way to revamp economic plan for Manchin ."  Given that Senator Joe Manchin's statements about fiscal policy over at least the last six months have been either confused or dishonest (usually both ), this was one of those recurring moments of deep frustration that are familiar to anyone who knows anything about fiscal policy.  It is understandable that House Democrats would feel the need to offer to take Manchin at his word, trying to rework the Build Back Better legislation to win his vote by giving him a bill that would lead to "deficit reduction" -- even though the original legislation that Manchin has rejected was "paid for."   But it is also inevitably not going to work, because of Manchin's confusion and/or dishonesty.  Moreover, even if this does somehow win him over, it will be at the cost of kowtowing to econo...

by Michael C. Dorf In his concurring opinion last week in Merrill v. Milligan , Justice Kavanaugh, joined by Justice Alito, said that the 5-4 order   staying the lower court's decision that Alabama's new congressional map violated the Voting Rights Act (VRA) was primarily based on timing, not the underlying merits. The concurrence (and thus presumably the majority) relied on the so-called Purcell principle, which generally proscribes judicial intervention too close in time to an election. As Justice Kagan's dissent explained, however, the invocation of the Purcell principle was badly flawed in the Alabama VRA litigation. The plaintiffs and the district court acted with alacrity and a new VRA-compliant map could be drawn lickety-split, thereby allowing adequate time for primary campaigns and elections. Indeed, I would go further to say that the Purcell principle itself should be renamed the avocado principle . The delicious but temperamental fruit ( technically a berry! ) fr...

by Sherry F. Colb Recently, Joe Rogan apologized. He apologized for his irresponsible COVID-19-related programming, and he apologized for using the N-word in the past. As a general matter, I like apologies when they are sincere (which they so often are not, unfortunately), and I have forgiven quite a few people for conduct that they authentically came to regard as unreflective of who they now are. A real apology is in a sense a commitment to be a different person in the future, one who would not have done what the person actually did. Most amusing are the apologies that one hears from individuals with personality disorders (including psychopathy and narcissistic personality disorder). You can ask such people "why are you sorry?" or "what are you sorry for?" and they will consistently get it wrong. The reason is that they live to manipulate and hurt other people (only a slight exaggeration), and their apology happens only because they believe "if I apologize, th...

by Neil H. Buchanan   The latest inflation report was released this morning, and it was basically in line with forecasts, with the top-line number showing year-over-year inflation as of the end of January at 7.5%, up from 7.0% last month.  Because even the non-opinion reporting about this issue has been in hyperventilation mode for months, the press pointed out that the 7.5% estimate (and to be clear, the official reported numbers are estimates, subject to revision) was slightly above the consensus forecast of 7.2%, making the story about how "a key inflation measure [came] in higher than expected."   This week, I have already written two columns about inflation, one a two-parter on Verdict (published on Tuesday and today ) and the other here on Dorf on Law on Tuesday .  In the two that were published on Tuesday, however, I tried to spend as little time as possible talking about inflation, even though the topic was in fact inflation, because I wanted to avoid bo...

  by Michael C. Dorf The right-wing freakout over President Biden's commitment to naming a Black woman to the seat from which Justice Breyer will retire is racist and hypocritical--as Professor Colb argued on the blog Monday . Still, it provides an occasion to interrogate longstanding practices of presidents in making SCOTUS and other nominations. In today's essay, I'll suggest three ways of understanding those practices. But first, a brief description is in order. As numerous other commentators have noted, President Biden's commitment to naming the Court's first Black woman to the Breyer seat is hardly unprecedented. President Reagan promised to name the Court's first woman and delivered on that promise with Sandra Day O'Connor. Reagan also reportedly named Antonin Scalia at least in part because he was of "Italian extraction." Whatever President Bush 1 said about his selection of Clarence Thomas, everyone knows that it was important to Bush to n...

by Neil H. Buchanan There are few things more reliable and predictable than hack punditry on the right.  The world of opinion writing in general is highly insulated, and its gatekeepers sort for people who are not qualified to speak or write about anything in particular.  On the right, the added problem is that there are certain assertions -- what Paul Krugman has memorably labeled "zombie ideas," such as the repeatedly refuted (by evidence as well as logic) claim that tax cuts pay for themselves -- that right-wing pundits simply refuse to abandon. As I have written many times, the problem is made worse by the asymmetry of left-leaning commentators' repeated willingness to adopt conservative framing for their arguments.  For example, I recently criticized the undoubtedly progressive MSNBC commentator/host Joy Reid for reinforcing the right's anti-deficit rhetoric.  Whoever sets the terms of the debate is at a huge advantage, yet the left tends to cede that opportun...

 by Sherry F. Colb After Justice Stephen Breyer announced h is planned retirement as Associate Justice on the U.S. Supreme Court, President Biden made the following announcement: "The person I will nominate will be someone with extraordinary qualifications, character, experience and integrity. And that person will be the first Black woman ever nominated to the United States Supreme Court."  Predictably, right-wing histrionics were soon to follow. Ilya Shapiro of Georgetown Law School had named his preferred choice from among Democrats (a South Asian man) and in response to Biden's an nouncement tweeted that Shapiro's choice "doesn't fit into the latest intersectionality hierarchy so we'll get [a]  lesser black woman.” Because Biden had yet to select his nominee, the plain implication of what Shapiro said was that no Black woman exists who is as qualified as the man that Shapiro had recommended.  Shapiro is now on administrative leave from Georgetown to al...

by Matthew Tokson Information about how much energy a household consumes has historically been pretty unrevealing. It might be mildly embarrassing to run up a high energy bill, but beyond that it’s difficult to think of a less sensitive form of personal data. With the rise of “smart meter” technology, however, energy utilities and government agencies can increasingly use energy data to infer what happens inside of a home. Patterns of living, the use of individual appliances--virtually anything that uses electricity can be detected. Granular energy use data can reveal what the inhabitants of a home do and exactly when they do it . This is especially true when smart meters interface with smart home devices like Amazon’s Alexa. And police have already begun to use such data in criminal prosecutions . At the same time, smart utility meters can provide enormous benefits. They promote efficient energy grid management, helping to mitigate climate change and increase consumer welfare. They all...

by Neil H. Buchanan   Could it be true that America is not a dead democracy walking after all, and in fact that there is not even a danger of democracy dying at all?  Please let it be true!  Are all of us who are warning about the authoritarian turn in the Republican Party, coupled with its newfound willingness not even to be subtle about trying to make elections meaningless, a bunch of hand-wringing drama queens who have lost perspective? No, of course not, but in one of those strange alliances that occasionally develop organically between some on the right and some on the left, an online bro discourse has emerged that is attempting to dismiss existential concerns about the fate of our constitutional democracy and the rule of law through mockery and ridicule.  In a recent column , I (accurately) described a right-wing columnist as relying on "adolescent snark," but clearly there is nothing stopping left-wingers from doing the same thing.   In this case, sadly,...

 By Eric Segall I have been teaching Roe v. Wade and Planned Parenthood v. Casey  since 1993. We are at that point of the semester where we cover these cases and I have realized I may not teach them again. Although my survey Con Law II course does review a few overturned cases, given how much there is to cover, if the Court dramatically changes the law of abortion this June, I doubt there will be time to teach these old cases or even if I do, I will do so quite differently. All of this caused me to reflect on these two landmark decisions, the many misconceptions people have about them, and my own views on abortion and judicial review.

by Neil H. Buchanan The Super Bowl teams are set, and although I recently wrote that, "[o]ver the course of my life, I have almost entirely lost interest in everything sports-related except college football," it seems that I picked exactly the right year to pay attention to the pro football playoffs again.   Everything that is wrong with American football in general is still very wrong, and the pro game is generally unwatchable because of excessive commercials and planned mediocrity -- Which 9-8 teams will be among the 44 percent of teams that make the playoffs?! -- but this year's playoff games included more "wows" than I can ever remember, which is even more impressive because we tend to embellish memories from our youthful days.  Just two minutes at the end of one of the second-round playoff games was enough to give fans memories (even fans of the losing team) that will glow for years. Sports cannot be separated from politics, of course.  Colin Kaepernick,...