Dorf on Law

  by Michael C. Dorf This little post is not intended as a summary of the whole Term, just today. Here goes: (1) It was terrible, but it could have been worse. The Court in Biden v. Texas allowed the administration to end "Remain in Mexico." The idea that this cruel policy--pursued by no administration prior to Trump's--was statutorily required all along was unbelievable. And the Court's holding was simply that the word "may" means "may," not "must." So of course the case barely came out the right way, with Justices Thomas, Alito, Gorsuch, and Barrett dissenting. (2) West Virginia v. EPA is very bad news for the planet and for regulation more generally. Justice Kagan is a bit too cute in dissent in pointing out that the Court had never before used the term "major questions doctrine." The basic idea was established in prior cases, but she and Justices Breyer and Sotomayor, who joined her dissent, are right that the Court has ex...

  by Michael C. Dorf In a few hours, SCOTUS will end its Term, Justice Breyer will officially step down, and Justice Jackson will shortly be sworn in. The two remaining cases on the docket will be handed down. Those cases provide the Justices with an opportunity to further tear the fabric of American law, perhaps by eliminating Chevron deference to administrative agencies, perhaps by reviving the non-delegation doctrine, or perhaps by so inflating the major questions doctrine as to effectively kneecap the administrative state without formally acknowledging as much. Should something along those lines emerge from One First Street, I may write a second blog post today. Meanwhile, I want to take a few moments to celebrate a rare victory for sanity and decency yesterday in Torres v. Texas Dep't of Public Safety . By 5-4, the Court (Breyer, joined by Roberts, Sotomayor, Kagan, and Kavanaugh) upheld the application of the Uniformed Services Employment and Reemployment Rights Act (USE...

Note to readers: Last Thursday (June 23), I published a new Verdict column, " Social Security’s Good News is Good News ," in which I took my yearly look at the health of the world's most successful social program.  After demonstrating that the latest annual forecasts from the Social Security Trustees are even better news than usual -- and that the political hit job on Social Security continues to be based on neither evidence nor logic -- I also gamely offered the optimistic argument that Social Security (and even Medicare) might survive after the Republicans finish turning the United States into a one-party autocracy. I have no further thoughts on that topic right now.  When the Dobbs decision became a reality, I shared Professor Dorf's immediate sentiments (" Ugh ") and called it a (very bad) week without writing my usual second Dorf on Law column.  Today, I will continue to distract myself from our Court-ordered dystopia (and reports about the plate-t...

 by Sherry F. Colb I have written quite a few posts about Dobbs v. Jackson Women's Health Organization  in these pages. With the luxury of time and space, I was able to elaborate both the foundation of my view that women have a strong interest in expelling an unwanted zygote/embryo/fetus from their bodies and the reason why a zygote should not have the status of a being with rights. Last week, I received an invitation to write an op-ed for Fox News about the abortion decision. I knew that I could not take on the entire issue in 600-800 words, so I decided to focus on Samuel Alito's (SA's) complete failure to consider the costs in pain and risk and hardship that pregnancy--and especially unwanted pregnancy--entails. I put the status of the zygote/embryo/fetus to one side, in other words, and concentrated on the pregnant woman's side of the balance. No one will be surprised to learn that I received some hate mail highlighting my stupidity, my dishonesty, and the likeliho...

 By Eric Segall Last week the Supreme Court issued three rulings that dramatically changed constitutional law in this country for the worse. The three liberals dissented in all three cases. The ultra-conservative Supreme Court majority lowered the wall of separation between church and state, limited the ability of states to pass reasonable gun laws, and reversed Roe v. Wade and returned the issue of abortion to the states (or potentially Congress). My very sad observations are below.

 by Sherry F. Colb This week, the Supreme Court held that New York State's limits on concealed carry are unconstitutional under the Second and Fourteenth Amendments. Anyone who is being honest will acknowledge that those who framed and ratified the Second and Fourteenth Amendments had no expectation that the constitutional protection would extend without limits to those carrying concealed firearms on their person. That is perhaps why a group of people who are actually knowledgeable and competent on the history submitted an amicus brief explaining that the historical evidence does not do what the six ideologues on the Court want it to do. What bothered Justice Clarence Thomas (CT) about the New York law that he and his fellow power-judges invalidated was the requirement that a person who seeks a license to carry a concealed weapon in public demonstrate that they have an elevated need for a gun they might use in self-defense. Such a requirement, according to CT, demotes the Second A...

  by Michael C. Dorf The leaked opinion in Dobbs is now the law of the land . I haven't read enough of it yet to know whether there are differences from what we saw last month to the final version, but it hardly matters. My co-bloggers and I will have more to say about this travesty in the days, weeks, and months ahead, but for now, ugh. Meanwhile, you can read my Verdict column on yesterday's gun ruling here . Also ugh.

 by Sherry F. Colb When we talk about rights--who has them and who does not--we often refer to a broad range of entitlements, some of which are quite basic and others relatively limited in their application. In this post, I want to talk about the most basic of rights that anyone who could be considered "someone" ought to have, regardless of their intelligence, their long-term memory, their status as a loner versus a member of a community, and other characteristics that one might require before bestowing some rights. I refer here to the right to protection against the violence of others, with violence referring to assault and battery, torture, unnecessary incarceration, and murder. Even if you are not terribly bright, have few or no friends, never earn any taxable income, and delight in your illiteracy, you nonetheless have a right not to be subjected to violence of the sort enumerated in the last sentence. Indeed, if anyone suggested that it is acceptable to assault you, to t...

  by Michael C. Dorf Because of its low population density, Maine cannot afford to provide local public schools for all children in the state. Instead, parents of students in various rural districts throughout the state can receive tuition assistance (what I'll call vouchers) to pay for (some, most, or all of, depending on tuition) their children's education at an accredited private school, so long as the education the school provides is "nonsectarian," i.e., not religious. Until twenty years ago--when the Supreme Court decided Zelman v. Simmons-Harris -- it would have been very plausible to argue that Maine's exclusion of religious schools from its voucher program was constitutionally required by the First Amendment's Establishment Clause. Zelman rejected that view and upheld what the Court deemed a neutrally structured system of vouchers that were redeemable at religious along with secular schools. Yesterday's 6-3 ruling in  Carson v. Makin   held that t...

by Neil H. Buchanan     In a growing but unplanned series of columns, I have been engaging in a post mortem of sorts on the American experiment, which is clearly in its final death throes.  One particularly interesting question is the amount of blame that establishment Democrats bear for the ongoing tragedy.  Although one might argue that there was never truly any way to prevent the Republicans from using the deeply antidemocratic flaws in the Constitution to create their one-party autocracy, I suspect otherwise.  In any event, there have certainly been plenty of times in which the nominally liberal party's leaders did nothing while the system was being destroyed under their noses. In a new Verdict column today, I offer something of a mash-up of two very different examples of the bad instincts of many liberals and Democrats.  Specifically, I point out that the center-left's blithe agreement with the Republicans' framing of the political correctness/cance...

 By Eric Segall As of this morning, the Supreme Court has 20 cases left to decide. This week the Justices will issue opinions on Tuesday and Thursday. The Court usually finishes its business by the last day of June but there is no hard and fast rule about that. Although many of these cases are certainly important, here's my list of the five most critical ones, and a brief discussion about each one.

by Neil H. Buchanan     This has been a tantalizing week in American politics.  Horrible things have been happening, but just when it appears that all is lost, we are teased into thinking that some hope remains.  I am not falling for it (again).  Please allow me to explain, after which I will explore why all of the noise around US politics is at this point either cynical nonsense or (at best) self-deluded force of habit.  

by Sherry F. Colb When people speak of "rape culture," what they mean is that society normalizes rape in one or more of a variety of ways. To normalize rape is to treat it as a normal behavior that is really not that big of a deal. The law can normalize rape directly by allowing some classes of rape and classifying the remaining subset as, in the words of Susan Estrich, "real rape." Sir Matthew Hale (MH), a British jurist from the seventeenth century with a starring role in Samuel Alito's (SA's) leaked opinion in Dobbs v. Jackson Women's Health Organization , promoted and served as a famous apologist for the marital rape exemption, a legal immunity for men who rape their wives, an immunity that lasted in this country until the late twentieth century. By allowing men to force their wives to have intercourse against their will, the marital exemption law fully normalized this form of rape and thus contributed enormously to rape culture (though no one had ye...

  by Michael C. Dorf The intended takeaway from Monday's meeting of the January 6 House Select Committee goes roughly as follows: Trump lost the 2020 election; every reasonably well-informed responsible person around Trump told him that he lost the election and explained to him, at length and repeatedly, that his claims of election fraud were, as then-AG William Barr put it, "bullshit"; Trump nevertheless repeatedly peddled false claims of election fraud in order to stoke his base and fundraise off of the Big Lie, which was, in Congresswoman Zoe Lofgren's phrase, "also a big rip-off." Further hearings will explain how Trump's promotion of the Big Lie fueled the insurrection. Whether these hearings will move public opinion at all, much less enough to motivate 2024 Republican primary voters to reject Trump if he runs again, remains to be seen. In the meantime, I want to use this space today to draw some distinctions among three categories of Republican lea...

by Matthew Tokson The First Circuit's long-awaited en banc decision on telephone pole camera surveillance of a home has finally arrived . But it's not clear what it means going forward, because the 6-judge court split on the issue 3-3. The dueling opinions take up a whopping 129 pages in total. And whether the police can set up a surveillance camera on a utility pole and point it at a person's house for months or years at a time remains ambiguous, with a developing split among courts and, now, a split inside the First Circuit itself. This post reviews the First Circuit's struggles with the pole camera issue and surveys the prospects for Supreme Court review of the issue in the near-term.  The case involved ATF surveillance of the home of Nia Moore-Bush. Agents surreptitiously installed a camera near the top of a utility pole across the street from her residence. The camera recorded the front part of a Moore-Bush's house and yard and her full driveway for 8 months co...

 by Sherry F. Colb In Justice Alito's (SA's) leaked opinion in Dobbs v. Jackson Women's Health Organization , he took an originalist approach to answering the question whether women are entitled to be free of forced pregnancy and childbirth. Not surprisingly, at a time when women lacked the right to vote and their bodies were considered largely the property of their husbands, the right against forced pregnancy and birth was not an apparent priority with the all-male electorate. One could make an originalist argument for abortion rights based on the sorts of abortion prohibitions that predominated in earlier centuries, but SA was plainly not interested in finding a way to protect women's rights. In the course of making a number of fatuous historical arguments, SA quoted Sir Matthew Hale (MH), a British Chief Justice some of whose pronouncements became part of our law for hundreds of years. The quote suggested that abortion is an extremely serious crime. A number of reade...

by Michael C. Dorf The powerful House Select Committee public hearings that began last night should serve as a reminder--if any were necessary--of the grave peril that confronted and still confronts our democracy. Even more than the facts that were displayed, the failure of Republican members of Congress other than apostates Liz Cheney and Adam Kinzinger to participate and the failure of Republican state media (i.e., Fox) to air the hearings illustrate the danger, for they reveal that, for the right, condemnation of political violence is not automatic but dependent on who's engaged in that political violence. Can that charge be fairly leveled against the political left as well? During the second Trump impeachment proceedings, lawyers for the defense and many of their allies tried to equate Trump's incendiary campaign with statements by Democratic politicians in support of the Black Lives Matter protests of the summer of 2020. The argument was that statements like Trump's ad...

Note to readers -- This week, I published two Verdict columns: " Are Activist Judges Efficient? Who Cares? What Matters Is That They Do Justice, " published yesterday, drew inspiration from one of Professor Colb's recent run of brilliant, wonderfully acid columns about Samuel Alito's atrocious draft opinion in the Dobbs case.  My column, however, was not focused on abortion but rather saw me seizing an opportunity to endorse a version of "efficiency" that I can finally get behind.   Today, I published " How Did the Public Discussion About Inflation Become Even More Ridiculous? "  Here, I briefly summarize and then expand on my arguments in that column.   by Neil H. Buchanan A DC think-tank maven recently referred to inflation as "the problem from hell."  She meant that inflation of the sort that we are currently experiencing is a political nightmare because it is an economic nightmare.  That is, people hate it but politicians cannot m...

 by Sherry F. Colb When I served as a law clerk to Justice Harry A. Blackmun almost thirty years ago, I had the opportunity to meet most of the Justices, and they were all quite likable. One of my favorites was Justice David H. Souter. He was warm, friendly, super-smart, and very kind as well. On many occasions, Justice Souter did exactly what a good person of unquestionable integrity would do. But he and I once had a conversation that I found surprising and somewhat out-of-character. Because Justice Souter is such a mensch, the perspective that he brought to the issue we discussed is likely shared even by many good people today. My goal in this post is to lay out the view, explain its appeal, and then demonstrate why it is wrong. I clerked the term that followed the Supreme Court's decision in Planned Parenthood v. Casey , a decision that was originally expected to overrule Roe v. Wade but ultimately upheld and applied it instead. (And no, I do not expect that switch to happen ag...

  by Michael C. Dorf My latest Verdict column assesses the apparent fact that the Supreme Court marshal's investigation of the leak of the Dobbs draft has sought mobile phone records from law clerks. Because the marshal is a government actor, the Constitution bears on the means her investigators may employ. In the column, I explain why a government employer could obtain these records even without a warrant or probable cause, so long as the scope of information sought were limited to phone numbers called, but that it's possible that the investigators seek more information, which could render such a search invalid under the Fourth Amendment. My main takeaway is that even if the investigators' request for mobile phone records is lawful, it is unwise, unfair, and counterproductive if the goal is to restore trust among the people working at the Supreme Court. Here I want to add a brief point about privacy for people who work outside the government. Because the Constitution appl...

by Neil H. Buchanan "If you don’t recall the national media headlines reading 'Tough-on-crime Republican prosecutors on defensive over crime increase,' that’s because there hasn’t been any such coverage."  Washington Post columnist Paul Waldman makes that telling point after running through some statistics about the murder rates in Jacksonville and Fort Worth, comparing them unfavorably to San Francisco -- with the two former cities having double the latter's number of murders, or worse, in 2019-21, even though all three cities have roughly the same number of residents.   Waldman's larger purpose in that piece is to describe how the media narrative on crime reliably defaults to the most regressive talking points available.  He then points out that the press's lazy framing of the economy is similarly helpful to Republicans -- so much so that 55 percent of Americans in a recent poll said that the US is in a recession.  That is absolutely not true, but t...

 by Sherry F. Colb I strongly support gun control. I do so because domestic violence is far more likely to escalate into domestic murder when the batterer has a gun. And although mass shootings kill fewer people than one-on-one gun violence in the home, mass shootings are tragic as well and traumatize communities and the nation. So what is my gripe with some proponents of gun control? Their common argument that a particular firearm has no legitimate use in "hunting." This argument annoys me for two reasons, one legal and one moral. The legal reason this argument bothers me is that it sometimes rests on the notion that people have a constitutional right to go out with a gun and slaughter nonhuman animals.  The Supreme Court's decision in District of Columbia v. Heller , however, recognizes a private right of gun ownership for self-defense , not for slaughtering animals. To be sure, the opinion contains a few references to hunting as an activity people who own arms might al...

By Eric Segall Readers of this blog probably know that I had a very close relationship with retired Judge Richard Posner before (and a little during) his current terrible battle with Alzheimer's. We talked on the record roughly once every two weeks for years and I have hundreds of hours of recorded conversations with probably the most famous judge of our lifetime not to sit on the Supreme Court.  Posner, who everyone knows was not shy about saying what he felt, ranted quite a bit during these conversations about many things legal, political, and social. But the angriest and most upset I ever heard him was about an old concurring opinion by Justice Antonin Scalia in Herrera v. Collins ,  joined only by Justice Clarence Thomas.  The majority in Herrera ruled that, absent a constitutionally flawed trial, a capital defendant could not seek to re-open the trial with new evidence ten years after the initial trial. The dissent thought this was terrible, and it is, but Justice Sc...

by Neil H. Buchanan If so-called Kitchen Table Issues continue to have any political valence (and on most days, I honestly doubt that they do), certainly the costs of buying, maintaining, and insuring the abodes within which those kitchen tables are located ought to matter to politicians.  And in a way, Florida's Republicans proved that the cost of housing is still a big political issue by holding a special session last week to address their state's homeowners' insurance crisis.  Even though they have successfully shut down serious political competition in their state, Florida's ruling party felt the need to act in the face of a genuine crisis. That is not to say that the all-culture-war-all-the-time mindset of the Republican Party (nationwide no less than in Florida) was not a big part of the story.  After all, while this very real pocketbook problem was festering, my state's governor and his party spent months bullying teachers and students, passing bigoted legis...

by Sherry F. Colb It has in the recent past become common knowledge that religion and science occupy complementary zones. Science tells us what “is,” while religion tells us what we “ought” to do about it. Science is thus factual, while religion is normative. And where religion describes facts, those facts are unknown and unknowable by science. The belief that someone will go to heaven after she dies is factual, but we will never have any evidence that will either prove or disprove the attested fact. So far as science can tell, everyone who has died is gone and unable to tell us where they are, for good or ill. Their whereabouts are thus fair game for the religious imagination. With religion telling us only “oughts” and unknowable “ises," one could come to the conclusion that the world of scientifically knowable facts falls outside the scope of religion. One would, however, be mistaken in drawing that conclusion. Religion has always been more ambitious than the above picture sugge...