Dorf on Law

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...