Dorf on Law

By Eric Segall I am currently working on a long law review article showing that the original meaning of judicial review is nothing like the practice of judicial review today. One can believe in originalism or one can believe in non-deferential, strong judicial review, but one cannot believe in both (at least with intellectual consistency). This blog post is a short summary of that thesis with a lot more to come.

by Neil H. Buchanan Here at Dorf on Law , we are still in shock as we try to cope with the passing of Sherry Colb.  Her husband Michael Dorf posted a beautiful eulogy this past Thursday, and I will soon publish my own thoughts about the death of my wonderful friend and colleague.  Today, however, I am not yet ready to wrestle with those thoughts and emotions, and I know that I would not be able to turn them into cogent (or even minimally coherent) prose.  I will do so soon, I promise, but not yet. Today, I want to share a column that I wrote in 2008, which was my announcement that I had become a vegan.  I include a link to it every year in my "veganniversary" posts, but I am republishing it today because, as the title of today's column indicates, publishing that column led to one my best moments with Sherry.   The moment was great not only because she had been hoping to convince me to become a vegan -- although that was obviously important and essential. ...

by Sherry F. Colb [Note from Michael Dorf: A reader suggested that we run a series of Sherry's "greatest hits," which I think is an excellent idea. Over the next several weeks, I'll periodically post Colb classics interspersed with new essays by my co-bloggers. I begin with an essay Sherry posted last December on Medium but not on Dorf on Law . Re-reading it now, it is evident that in talking about our dog Scooter, Sherry was in some way talking about her own illness, but I hesitate to make too much of the point. Sherry never liked when people used the stories of non-human animals simply as a vehicle for talking about humans. In any event, I'll let Sherry's own prose do the work, as it always did.]  --------- Losing Scooter When I first met Scooter, he was a small, soft pillow of black, beige, and brown. I picked him up and he licked my nose and eyes. He smelled like corn chips. His mother Hiccup stood outside in the yard, looking in through the sliding doors...

by Michael C. Dorf I'm writing with unspeakably sad news. Sherry Colb--my co-blogger, co-author, colleague, best friend, and wife for over 31 years--died this morning.  A funeral service will be held this Sunday August 28 at noon at  Plaza Jewish Community Chapel  on Amsterdam Avenue at 91st Street in Manhattan (five blocks from where Sherry grew up), followed by burial at  Cedar Park Chapel and Cemetery   in Paramus, NJ. There will be an additional memorial service at Cornell in Ithaca some time in the coming months. I expect that this news comes as a great shock to most readers, given Sherry's relative youth, and how, until very recently, she was extremely prolific--not just her  Verdict  columns and blog posts but also four law review articles in the last year.  Accordingly, I will add a bit of background.

by Antonio Haynes Since the execrable decision in Dobbs , there seems to be a cottage industry of articles discussing the increase in men having vasectomies. Indeed, a recent New York Times article explained that, “Vasectom[ies], a quick, outpatient surgical procedure that cuts the tubes that carry sperm, [are] one of the most reliable and cost-effective forms of contraception available — with almost none of the side effects or complications of birth control methods that are geared toward women.” Nevertheless, the procedure remains relatively rare. “[I]n the United States, an estimated 500,000 men get the procedure each year. Some surveys suggest roughly 5 to 6 percent of men between 18 and 45 have gotten the procedure, as opposed to roughly 20 percent of women aged 15 to 49 who have gotten their tubes tied.” According to one urologist, Dobbs itself might change everything: “In April, May and June, 38 young, child-free men got vasectomies at his clinics, making up 4.6 percent of his ...

by Neil H. Buchanan Earlier this summer, President Joe Biden and Speaker Nancy Pelosi were raked over the coals by some very understandably frustrated Americans who did not understand top Democrats' tepid reaction to the Supreme Court's ending of abortion rights.  The Court's decision, because it had been leaked months prior, was hardly a surprise.  And even though it still came as a shock, there was no excuse for Democratic leaders not to have responses ready to go, both in terms of political messaging and substantive policy responses. Instead, the response by the nation's top Democrats was to fall back on tired platitudes once again, telling people that "we just need to win more elections."  That that is tautologically true does not make it helpful, and Pelosi's "now you have to give us even more money to win even more elections" seemed especially tone-deaf (at best), with Democrats having won in 2020.  Yes, if Democrats had been able to pick ...

  by Michael C. Dorf Over four years ago, I wrote an essay here previewing remarks that Prof Colb and I were planning to deliver at an animal rights conference at Bucknell University. They concerned our views about how to address an objection to veganism (and vegetarianism and even pescatarianism) that has much in common with what philosophers call the nonidentity problem. The objection says that eating the products of animals benefits those animals because the animals bred and raised for food would not exist but for the demand for their products. As I wrote in 2018, the objection only gets off the ground with respect to farmed animals who have lives worth living, but given the conditions of modern animal agriculture, few animals do lead lives worth living. I then laid out the rest of the response Prof Colb and I were developing on the largely counterfactual assumption that animals bred and raised for food  do have lives worth living. The gears of academia move slowly, so our...

 By Eric Segall Readers of this blog likely know that I wrote a book in 2012 arguing that the Supreme Court is not a court and its Justices are not judges. My thesis was and is based on a perfect storm of factors, including the institutional design of the Court and our country, historical practices, and human nature. Taking these factors together, I concluded that the Supreme Court in practice makes all- things-considered decisions, not legal decisions, with the only real constraint being the Justices’  own views on what the American people and the elected branches will tolerate or accept. Here is a quick summary of those factors: 1) Most of the Constitution's litigated clauses are hopelessly imprecise; 2) Our Constitution is virtually impossible to amend and extremely old; 3) The people who serve on this institution hold their offices for life; 4) We have a strong tradition of aggressive judicial review dating back to at least 1857 ( Dred Scott); 5)  The Court's decision...

by Neil H. Buchanan It is a particularly unusual mid-August for those of us in  Dorf on Law World, one consequence of which is that my sincere intention to write a new column today fell by the wayside.  I therefore offer a Dorf on Law Classic from October 15, 2020.  Given the recent Republican primary results, the column seems especially pertinent to our near future. The Winner's Curse in an Autocratic Power Grab by Neil H. Buchanan What would it be like to be on the winning side of a Constitution-shattering political putsch?  Winning is great, right?  Certainly, one would think that -- at least for those who have no principles other than grabbing political power by any means necessary -- life would be pretty good on the other side of a coup d'etat.  You enjoy the spoils, and the other guys eat dirt. In my new Verdict column today , I start to address that question by looking at the highest-level Republican enablers of Donald Trump. ...

  by Michael C. Dorf My latest Verdict column previews the pending Supreme Court case of National Pork Producers Council (NPPC) v. Ross . As the column explains, the national pork industry has challenged California's Prop 12, which sets standards for the humane treatment of pigs from which pork products sold in the state derive, even where, as is true of over 99% of the pork sold in California, the pigs are raised and slaughtered in other states. The plaintiffs/petitioners argue that Prop 12 violates the dormant Commerce Clause because it imposes an excessive burden on interstate commerce and/or because it amounts to impermissible extraterritorial legislation. I argue in the column that both challenges should fail. The column then asks whether, if Prop 12 is valid, so are state laws that ban the importation into the state of abortion pills. After explaining why that result might follow, I offer possible grounds for distinguishing abortion pills, including that FDA approval of such...

by Neil H. Buchanan One of the many false talking points that has recently emerged among Republicans with national ambitions is that the Inflation Reduction Act (the significantly pared-down, but still extremely good, final iteration of the Build Back Better bill) will involve -- cue the scary music -- hiring 87,000 new Internal Revenue Service agents to harass and jail typical, law-abiding American citizens. Again, this is false.  It is just as false as the claim that the FBI (in carrying out a search of Donald Trump's country club) was using Gestapo tactics to allow Joe Biden's "regime" to exact vengeance on a once and future political rival.  In some ways, however, the "Fear the IRS" story is false and dishonest in more ways than the usual Trump-Republican lies are false and dishonest.  It is also arguably more interesting and consequential, because this latest step in vilifying the IRS highlights the difference between taking a stand on policy (Republic...

 By Eric Segall Last week, Mike wrote a sports column on this blog in which he (inexplicably) made public his fandom for both the New York Mets and the New York Yankees. I grew up just a few miles from Mike and I hated the Yankees with a passion and still do, and I'm indifferent to the Mets.  In the late 1960's and early 70's I bled the orange and blue of the New York Knicks. Although the 1969-70 Championship team is the one people remember because of Willis Reed's epic return to the Court in Game 7 after a serious injury, it is the 1972-73 team that is much more interesting both in terms of sports history and for what the Supreme Court could learn (but likely won't) from both the team and one of its stars, Earl Monroe. Before I explain that seemingly odd connection, for the NBA fans out there, the second championship team had six Hall of Famers, including its entire starting line up. No team since has had six Hall of Famers at the same time. Earl Monroe, known in ...

by Neil H. Buchanan   Republican leaders continue to rally around Donald Trump and his absurd claims that the FBI's actions pursuant to a valid search warrant are somehow evidence of a conspiracy against the Florida Man.  His state's junior senator has described law enforcement officers' actions as Gestapo-like, and his state's governor is making noises about "the weaponization of federal agencies against the Regime’s political opponents," adding that the US is now a "banana republic." In my Dorf on Law column two days ago, I described such reactions by Republicans as the on-the-ground manifestation of the end of constitutional democracy.  The rule of law is all about guaranteeing acceptable outcomes by providing due process and neutral adjudication, but Republicans have now made it abundantly clear that this is all about giving their friends free passes and their opponents the shaft. In particular, I noted that some of the most widely accepted t...

by Michael C. Dorf I begin with an apology to my readers who are not sports fans or to those who are sports fans but, like Prof Segall, think baseball unbearably boring. I don't entirely disagree with Prof Segall. My first love (both to play and to watch) was and remains basketball, but today I'm going to write about baseball--and some broader themes with which it connects. I'm the Dorf in Dorf on Law ; it says right there at the top that we cover law, politics, economics, and more . Today I want the distraction of baseball. And as I hope becomes clear, I'm using baseball at least partly as an entry point to talk about free will, human relations, and . . . well . . . more. So . . . the Yankees and Mets are both having outstanding seasons. Although the Yankees started stronger, the smart money is on the Mets to finish with the better record and to fare better in the postseason, now that they have two of the best active pitchers in the majors--Max Scherzer and Jacob deGro...

by Neil H. Buchanan During the more than seven years that I have been warning about the inevitable end of constitutional democracy in the United States, I have almost exclusively focused on the legal mechanics of how this process will play out.  Being a law professor, I am inexorably drawn to "on paper" explanations, that is, laying out the procedural mechanisms that Republicans are using to turn the US into a one-party state. Thus, I have pointed out the various ways in which future presidential elections can be hijacked via strategies that tax lawyers would sardonically describe (in a different context) as "perfectly legal" -- that is, gambits that are apparently within the letter of the law but are still terrible outcomes.  The Electoral College exists; the Constitution gives state governments the power to choose electors in utterly non-democratic ways; the Supreme Court has made it clear that Republicans can suppress votes and gerrymander at will; the Court mi...

 By Eric Segall Justice Clarence Thomas has been on the Supreme Court fourteen years longer than any other current Justice. If Thomas serves six more years, which is highly likely, he will be the longest serving Justice in American history. His law clerks have become judges and elected officials all over the United States. Let's take a look at his constitutional vision for the United States of  America. One caveat. The other conservatives on the Court agree with much of what I discuss below. But none of them (at least so far) agrees with all the cases and legal rules that make up Justice Thomas' jurisprudence and none of them agrees (at least openly) with his radical views on precedent, which I leave for another day.

by Michael C. Dorf As most of my readers are probably aware, in the midterm primary elections, the Democratic Congressional Campaign Committee (DCCC) has been funding ads labeling various Trump-aligned Republicans as "too conservative" for the constituents in purple districts in which they're running, knowing and intending that Republican primary voters would be attracted by the ads' highlighting of the candidate's association with Trump. The DCCC calculates that a Democrat has a better chance of defeating a more extreme right-wing candidate than of defeating a more traditional Republican. The most prominent example of this strategy in the current cycle was support for ultimately successful challenger John Gibbs to displace incumbent Michigan Republican Peter Meijer--who was one of the ten Republican House members with the courage and integrity to vote to impeach Trump after the January 6 insurrection. Meijer and other principled Republicans are understandably out...

 by Sherry F. Colb I have lately heard a tremendous amount of commentary about how, if we were to recognize the Equal Rights Amendment (ERA) as law, women could wrest their right to control their most intimate bodily autonomy from the creeps that currently dominate the Supreme Court. One commentator in particular explained in an LA Times op-ed and then again  on the NPR podcast/radio show On The Media  that the reason the ERA would be so effective in protecting the right to abortion is that the Court had, up until this most recent benighted Term, identified the right as one of "privacy." Privacy, she explained, does not expressly make an appearance in the Constitution. But the ERA would "explicitly" protect women's entitlement to equality with men. Therefore, she said, President Biden could instruct the Archivist of the United States to carry out his statutory responsibility  to certify the ERA's ratification, and that would "cement[]" and "f...

by Neil H. Buchanan There has been a fair amount of chatter over the last several years to the effect that technology will soon make workers obsolete.  This has been a recurring theme in capitalist countries ever since there has been capitalism, with Luddites being the infamous touchstone for anti-automation extremism, but there is always a new audience willing to believe that the latest technological advances will truly, finally, and inevitably bring about the end of labor as we know it. That point of view received a big boost in the 2019-20 presidential primary season, when tech dilettante Andrew Yang decided that he was qualified to be the leader of the free world.  Almost everyone disagreed, but because of his wealth and the inclusiveness of the early primary season (a process so open that a self-help nutjob was given a respectful audience in Democratic debates), Yang was able to run a one-note campaign based on the idea that human beings will soon be left behind by the ...

by Neil H. Buchanan   A proposed bill to reform the Electoral Count Act (ECA) is a response to a few of the many problems with the US presidential election system.  Although the ECA has been a disaster in waiting since its passage in 1887, it was only in the 2020 election that it became clear just how vague and ultimately dangerous that law is.  After all, Donald Trump's lawyer John Eastman argued that parts of the ECA are unconstitutional and that the other parts could be used to justify the pre-violence part of the Trumpists' planned coup. Fortunately, that coup attempt failed -- barely -- and the ECA's many holes did not result in a constitutional crisis and a collapse of the American experiment.  Having only narrowly avoided that fate, people of good will are now trying to clarify and tighten the statutory language to make it even more clear how the certifying, challenging, and counting of electoral votes must proceed.  Eastman was completely wrong, even und...

 By Eric Segall In the iconic case Marbury v. Madison , decided not too long after the Founding, Chief Justice John Marshall wrote the following important paragraph, which seems unassailable as a normative matter: The government of the United States has been emphatically termed a government of laws, and not of men (sic, people). It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right. Marshall was referring to the decision of President Thomas Jefferson and Secretary of State James Madison to withhold the signed, sealed but not-yet-delivered commission making William Marbury a justice of the peace, but I hope we'd all agree that whatever branch of government is at issue, being a government of laws not people is an excellent aspiration. Of all our institutions, I expect many would think this ideal is especially salient for the United States Supreme Court. Let's see.

by Sherry F. Colb Much to the surprise of many observers, the House of Representatives recently voted to pass H.R. 8404, the Respect for Marriage Act  (RFMA). Because of the Orwellian doublespeak to which we have all become accustomed, I hasten to add that this bill would give federal protection (via mandatory interstate recognition ) to same-sex marriage (SSM), accomplishing the opposite of the shameful but similarly titled Defense of Marriage Act (DOMA) that Bill Clinton signed in 1996. The passage of RFMA in the House is significant for the safety it would extend to LGBTQ+ Americans in the wake of Sam Alito's (SA's) repugnant, reactionary, and religious opinion in Dobbs v. Jackson Women's Health Org . But RFMA has a subtext that we should not miss in our rush to celebrate the substance of what we hope will become the law. The House passage of RFMA signifies that a majority of the House concluded that SA and at least three of his partners in crime (Gorsuch, Kavanaugh, and...