Dorf on Law

by Neil H. Buchanan   The Biden White House recently proposed what it calls a "Billionaire Minimum Income Tax."  On his show last night, Seth Meyers quipped that the proposal was "part of [Biden's] 2023 budget, specifically the part they'll have to cut out before it'll pass."  He is right, which is a shame, because this is another instance in which completely sensible tax policy is going to give way to ignorance and bad faith. It is no surprise that Republicans oppose this idea.  Not only do they oppose anything that Democrats favor, but their very reason for being is to reduce taxes on the rich.  What is annoying, however, is that people who truly should know better are saying completely fatuous things about the proposal -- statements that are so misguided that it makes me think that there is simply no way that our political culture could ever move forward with even the most promising improvements to tax policy. The Biden proposal is based on plain-van...

by Neil H. Buchanan   Late last week, Erwin Chemerinsky and Howard Gillman co-authored an important opinion column in The Washington Post : " Free speech doesn’t mean hecklers get to shut down campus debate ."  As the law dean at UC Berkeley and the chancellor of UC Irvine, respectively, Chemerinsky and Gillman speak from the position of administrators.  But as respected scholars, they also speak from the viewpoint of professors, and they do so with great authority.   I thus was not surprised to find myself agreeing with their essential point, which is that "[f]reedom of speech does not include a right to shout down others so they cannot be heard."  Noting that some people defend those who shout down others by saying that the hecklers are themselves engaged in free speech, Chemerinsky and Gillman conclude that "[t]hat is wrong in terms of both the law and appropriate campus policy."   Again, I agree with the principle that there can be no heckler's v...

  by Michael C. Dorf Last week, in Austin v. US Navy Seals 1-26 , SCOTUS stayed a federal district court order that had barred the Navy from considering the "respondents' vaccination status in making deployment, assignment, and other operational decisions." It was a rare shadow docket case in which the Court chose to intervene against religious claimants and in favor of the government's assertion of public health interests. The very brief per curiam does not provide reasons and leaves open further consideration on the merits of the certiorari docket, but even at this stage, a concurrence and a dissent raise interesting questions. The majority comprised the Democratic appointees and what we might describe (recognizing that these descriptions are all relative) as the "moderate" conservatives: Chief Justice Roberts and Justices Kavanaugh and Barrett. Justice Kavanaugh also wrote a concurrence in which he spoke only for himself. Justice Alito wrote a dissent in...

 By Eric Segall If there is one thing that liberal, conservative, and moderate Supreme Court watchers and commentators all agree on is that the Supreme Court confirmation process is broken and has been for a long time. Last week was a painful exercise in pandering and deflection from all involved, including the nominee -- but that's not her fault. She played the game by the normal rules and I do not necessarily blame her for that. And to be clear, I strongly support her confirmation. But, because of those rules, like all Supreme Court confirmation hearings, this one was mostly a sham. Rather than focusing on the real views of the nominee, we had to listen to Republicans obsess over child pornography and critical race theory while the Democrats spent most of their time on the nominee's character as opposed to her legal views. The nominee said she was an originalist, but that could mean many things inconsistent with what people think originalism is, and she paid lip service to th...

  by Michael C. Dorf Having kept her cool through the ordeal of misogynistic,  sometimes racist  interruptions and mischaracterization of her record by various Republican members of the Senate Judiciary Committee, Judge Ketanji Brown Jackson will now likely be confirmed, absent some unexpected hitch (which is possible in a 50-50 Senate). SCOTUS confirmation hearings have become substantially less informative since 2005, when then-Senator Joe Biden aptly called the process a "kabuki dance." Even so, amidst the cringe-inducing botching of the law by Senators and the artful dodging and absurdly formalistic accounts of judging by the nominees (of both parties), one occasionally finds something interesting. That didn't happen this week but it almost did. Much of the questioning by the likes of past and future GOP Presidential hopefuls Ted Cruz, Lindsey Graham, Josh Hawley, and others focused on Judge Jackson's sentencing record in the handful of cases involving convictions...

by Neil H. Buchanan I have been saying for years that "political correctness" is a meaningless term, and I have repeatedly called on people who should know better to stop using it -- even (especially) when they think it does have a straightforward meaning, such as "saving 'differently abled' rather than 'disabled.'"  This has all become much worse, however, since the right's PC-panic-on-steroids of "cancel culture" and "wokeness" emerged over the last year or so -- again, abetted by liberals who truly should know better. One bit of evidence that these terms merely mean "something I don't like and want to disaparage" came in yesterday's announcement by Donald Trump that he is no longer endorsing Mo Brooks's Senate run in Alabama.  Why did Trump turn against the man who, perhaps even more than Rudy Giuliani, was a key part of the effort to keep Trump in the White House illegally?  Brooks, Trump tells us, i...

  by Michael C. Dorf I begin with a confession. The press of other obligations and the generally farcical nature of SCOTUS confirmation hearings have led me to pay attention to the current hearing for Judge Jackson only intermittently, mostly contenting myself with summaries and highlights. Yesterday I did manage to hear and tweet about the incompetent questioning of Judge Jackson by Senators Feinstein and Cornyn . I also listened to Senator Cruz fret that Judge Jackson's service as a member of the Board of Trustees of Georgetown Day School brands her a radical because the school--according to Cruz--teaches critical race theory to young children. That was enough for me for one day. I'll probably be unable to prevent myself from listening to more of the hearing today, but I'll take long breaks and will surely miss something. No worries, though. In the unlikely event that Judge Jackson yells, cries, or professes fondness for any category of alcoholic beverage, I'm sure ...

by Neil H. Buchanan   One of my central complaints about the American press is that reporters tend to be generalists and thus have only the most basic familiarity (at best) with any particular subject matter.  This can -- and frequently does -- lead them to make egregious errors, which is annoying and often harmful but does provide plenty of grist for my columns.   The other night, one of the MSNBC commentators made that point in the context of coverage of the war in Ukraine, noting that generalist reporters are expected to pivot from talking about corporate taxes to green energy to military matters.  He then noted that almost all of the reporters from major news organizations had quickly grabbed onto the "no-fly zone" notion, continually asking questions of Administration figures that essentially said: "A no-fly zone is obviously a good idea, so why aren't you doing it yet?"  The commentator then explained that, happily, reality had penetrated the reporters...

 By Eric Segall For far too long the United States Supreme Court has unduly interfered in our local, regional, and national politics. The Justices on all sides of our political divides consistently veto important state and federal laws without any persuasive basis in constitutional text or history. This overreaching is not a new phenomenon but goes back almost two centuries. I detailed that overreaching in my book "Supreme Myths," and I have been a strong Supreme Court critic through liberal, moderate, and conservative times.  Although numerous proposals have been advanced by legal scholars and politicians to deal with a Court that is much too involved in our politics and elections, none will be adopted in the near future, as evidenced by President Biden’s Supreme Court Reform Commission, which failed to agree on a single major idea. Yet, we must do something to rebalance the overly intrusive role unelected, life-tenured judges play in our country. There is one possible r...

by Michael C. Dorf Since the beginning of Russia's criminal war against Ukraine, I have mostly been writing about other matters. That choice reflects the limits of my own expertise, rather than a judgment about the importance of the issues. Obviously, the war crimes Russia is committing in Ukraine are orders of magnitude more important than undergraduate admissions at elite U.S. colleges , the best characterization of causes of action in federal court , and the other relatively mundane matters I've addressed in the last few weeks. But having resisted the temptation to step outside my lane to this point, today I'll succumb to it. I want to offer a thought about the possible terms of a peace "deal" with Russia. Russian representatives to the diplomatic talks with Ukraine have lately begun to make noises suggesting some amenability to a negotiated resolution to the current conflict. It is too soon to know whether these statements signal a genuine shift. As we have a...

by Neil H. Buchanan One consequence of a cataclysm like the war in Ukraine -- which at this point is more accurately described as a deliberate slaughter of innocents -- is to cause people to think about things in ways that were recently unthinkable.  Germany's sudden willingness to become a military power is the most obvious and possibly the most consequential such a shift, but there are any number of ways in which the old normal is being scrutinized, questioned, and possibly changed. It did not even count as an open secret that Vladimir Putin's corrupt oligarchs were laundering their money through western countries.  That phenomenon was sometimes decried and often led to furrowed brows and the shaking of heads, but it was there, out in the open, for everyone to see.  And as the Russian plunderers have spread their money around the world, they have been especially successful in parking their ill-gotten gains in the United Kingdom, and in London in particular.   Now,...

by Neil H. Buchanan   Proving that I still have untapped reserves of naive hope still flowing somewhere inside my soul, I experienced a brief moment of excitement earlier this week when I saw reports that Russia's state media propagandists are aggressively pushing content from Tucker Carlson's nightly " 60 minutes Hate " on Fox.  "It is essential to use as much as possible fragments of broadcasts of the popular Fox News host Tucker Carlson," flatly stated a memo from the Kremlin, as reported in Mother Jones .  That memo, by the way, is titled: "For Media and Commentators (recommendations for coverage of events as of 03.03)."   At that moment, I was transported to a time and place where that kind of report would have mattered.  I honestly imagined Carlson's viewers becoming outraged, finally seeing that their man was the worst kind of traitor.  Within a few moments, however, I came to my senses.  Not only would this come to nothing, but it wou...

  by Michael C. Dorf Last week, New York State Senator Andrew Gounardes introduced a bill that would forbid colleges and universities in New York State from advantaging legacies in undergraduate admissions. The bill would also ban such institutions from employing "Early Decision" admissions--in which the applicant commits in advance to attend the institution if accepted and the institution notifies the applicant of a decision earlier than it notifies regular decision applicants. A couple of weeks ago, I wrote a Verdict column about a similar proposal in Congress to ban admissions preferences for relatives of alumni of and donors to colleges and universities that receive federal funds--which effectively means all U.S. colleges and universities. Because I addressed legacy (and donor) preferences in that column, I'll merely summarize what I wrote there before turning additional attention to the proposal regarding Early Decision.

 By Eric Segall On Wednesday of last week, Professor Colb blogged about the two affirmative action cases, one involving Harvard and the other the University of North Carolina at Chapel Hill ("UNC"), that the Court will decide next year. Her excellent post predicted that the Court will hold all racial preferences illegal both under a federal statute prohibiting race discrimination in private organizations that accept federal funds (Title VI) and under the 14th Amendment. These likely holdings may also have a serious impact on the disparate impact theory of racial discrimination that is still in play for statutory cases under several federal civil rights laws. Her fear that the Court may hold disparate impact liability unconstitutional is well-founded and scary. In this post, I want to discuss a core problem with the Court's current and likely future skepticism about the constitutionality of affirmative action.

  by Michael C. Dorf A bill pending in the Missouri legislature would forbid women in the state from traveling to other states to obtain abortions. It would use an SB8-style mechanism that relies on private enforcement, presumably for the same reason that Texas adopted that approach: to evade federal judicial review. Such circumvention might be thought necessary, even if the Supreme Court overrules Roe v. Wade and allows states to forbid abortions, because the Missouri bill could be unconstitutional even if there is no right to abortion. After all, various federal constitutional provisions limit the ability of states to regulate extraterritorially or to restrict their citizens' ability to travel to other states. Here are some of the relevant doctrines and provisions that limit what states can do to restrict people going in and out: the dormant Commerce Clause; the Privileges and Immunities Clause of Article IV; the Privileges or Immunities Clause of the Fourteenth Amendment; the C...

by Neil H. Buchanan   Public opinion in the US and most of Europe currently is strongly in favor of imposing sanctions on Russia, hoping to force Vladimir Putin to relent in his escalating war that is destroying cities, displacing millions, and killing countless innocents.  Whether public opinion wavers will in large part depend on how long people are willing to tolerate higher prices for oil and natural gas products.   Given that Republicans have been breathlessly over-hyping the uptick in inflation for the past year, the public was already in a foul mood when it came to consumer prices.  And even though Republicans called on President Biden to ban imports of Russian oil and gas, they immediately blamed him for the impact on consumers.  How long before Democrats start to panic and say that maybe US inflation is more of a worry than a few bombed-out Kyiv hospitals? Even short of that, however, this is a good moment to stop and marvel at the breathtaking nerve...

by Sherry F. Colb Earlier this term, the Supreme Court granted review in cases challenging Harvard's and the University of North Carolina's (UNC's) affirmative action/diversity programs, Students for Fair Admissions v. President & Fellows of Harvard College and Students for Fair Admissions v. University of North Carolina . The Court did not have to take the cases. Grutter v. Bollinger  and Gratz v. Bollinger  held, less than twenty years ago, that race-conscious admissions policies are legal so long as they do not amount to quotas. Race, in other words, can represent one factor that schools consider in deciding whom to admit, but it cannot be the only factor for some designated fraction of the class. Harvard, UNC, and other schools that practice race-conscious admissions have seemingly been doing more or less the same thing since Grutter  and Gratz came down. The only new issue, at Harvard at least, is the fact that Asian American applicants appear to be absorb...

by Neil H. Buchanan The Zaporizhzhia nuclear power plant, Ukraine's largest, had its fifteen minutes of infamy recently, when the world held its breath for a few days to find out whether Russian military attacks on the nuke would lead to an unprecedented tragedy.   The worst did not happen -- or at least has not happened yet -- which meant that the blizzard of other war-related horrors quickly took over the news cycle.  Yet it is worth taking a moment to remind ourselves that it was only four days ago that we were honestly wondering whether Russia's unprovoked attack on a nuclear power complex would lead to a global nightmare.   This is all happening while the threat of the other kind of nukes -- tactical nuclear weapons -- is suddenly back on people's minds.  Stephen Colbert made a grim "duck and cover" joke a few days ago on his late night show, which reflects the tragic fact that this is probably the most worried people have been about the use of nuclear weap...

by Michael C. Dorf On Friday, the Supreme Court issued a 6-3 decision reinstating the death penalty for Boston Marathon bomber Dzhokhar Tsarnaev. The U.S. Court of Appeals for the First Circuit had reversed the death sentence on the basis of two errors by the district court: (1) failure to ask prospective jurors during voir dire about the media coverage they had seen and what they had learned from it; and (2) exclusion of evidence that Dzhokar's older brother Tamerlan had committed a triple-murder a year and a half before the Boston Marathon bombing. Writing for the (all-Republican-appointed) majority, Justice Thomas found that: (1) in light of the district court's probing for bias during voir dire , the decision not to ask the precise question requested about media coverage was a permissible exercise of discretion; and (2) the district court also did not abuse its discretion by excluding the evidence of the triple-murder by Tamerlan, as that evidence relied on statements by ...

  by Michael C. Dorf Wednesday's SCOTUS oral argument in Egbert v. Boule  presented the question whether a Bivens action is available to challenge alleged excessive force in violation of the Fourth Amendment and alleged retaliation in violation of the First Amendment by a Customs and Border Patrol agent who came onto the plaintiff's property--a bed-and-breakfast unfortunately named "Smuggler's Inn that sits on the border between Washington State and British Columbia--to investigate the immigration status of a Turkish guest. Readers may recall that  Bivens was a 1971 Supreme Court opinion that allowed a cause of action for damages due to Fourth Amendment violations by federal drug enforcement officers. It provides a judge-made analogue to the statutory cause of action against state and local officers that Congress enacted during Reconstruction and is currently codified at  42 U.S.C. §1983 . For some years, it appeared that Bivens might function as the equivalent of...

by Neil H. Buchanan The intensifying humanitarian disaster in Ukraine is the inevitable result of an obvious violation of international law, to say nothing of being a horrific and wholly unjustifiable act of war that will permanently harm even those Ukrainians who survive.  Those who are able to take refuge outside of their country as well as those who stay to face whatever comes next have had their lives irreparably damaged, not only by losing loved ones but by losing everything that they have ever known as a normal life. And this is all one man's fault.  Vladimir Putin has surprised everyone by deviating from what most observers thought to be true, which is that Putin possesses nothing resembling a human conscience but that he is fully in control of his faculties and thus can be impressively -- and reliably -- strategic.  He was thought to be a sociopath with keen reasoning skills.  Now, however, no one is sure whether he has gone insane and might no longer be abl...

By Eric Segall Professor Adrian Vermeule of Harvard Law School is somewhat of a polarizing figure whose opposition to gay rights and same-sex marriage are, to this writer, unpersuasive and troubling. But those subjects make up only a tiny portion of his new book "Common Good Constitutionalism." On many matters of public policy and constitutional law, Vermeule's suggestions are, and he will hate this word, progressive. More importantly, his book contains a devastating critique of the never-ending debates between originalists and living constitutionalists--debates that have not furthered constitutional discourse in a helpful manner. We must stop dismissing people because we disagree with some of their ideas. I have been attacked on Twitter for taking this book seriously. Some of those charges suggest that, because the man himself has said this or that allegedly offensive thing in the past, his book should be ignored. But I am discussing the book, not the man. Without minim...

by Neil H. Buchanan   It is hardly news that the institutions of democracy in the United States were never perfect, but anyone who has paid even a tiny bit of attention over the past six years has had reason to worry that things are reaching a tipping point beyond which we will completely lose our flawed democracy and become an autocracy.  Indeed, I am among those who have argued that we are already past that point and that we are now in the confusing period where it is still possible to deny what is happening even as we rush toward our post-democratic national (and perhaps global) fate. Even I, however, have refused to give up all hope, if only because one never knows what hidden or ignored options might yet save us.  And even if it does turn out that the future cannot be changed, it is surely better to have exhausted every last possibility rather than merely to assume that there was never any point in trying.  I am thus constantly on the lookout for anything that...