Dorf on Law

Yesterday, the Supreme Court announced what in some ways looked like a momentous decision, granting Donald Trump's lawyers' request to review the DC Circuit's unanimous ruling against his idiotic claims of absolute immunity from prosecution.  Arguments were set for almost eight weeks from now, on April 22. This news set off frantic speculation among pundits and politicians (and even some supposedly neutral reporters) regarding whether the delay tactics by the Court's Trumpist hyper-conservative wing -- which has already made clear that it will rule in his favor in the Disqualification Clause case, after moving with alacrity when its politicians in robes were sufficiently motivated -- have effectively killed any possibility that the federal criminal cases against Trump will happen before Election Day. Never having clerked for the Supremes, and not being a ConLaw Court-watcher type of dude, I have no way of knowing what might happen in terms of timing.  Yes, it "s...

News broke last week that Justice Clarence Thomas hired as a law clerk a former fired employee of a far-right organization whose text message to a friend included these sentiments, “I HATE BLACK PEOPLE…I hate blacks. End of story.” The background to this entire sordid story can be found here . Why Justice Thomas would go out of his way to help this woman raises challenging questions about Justice Thomas and race that have perplexed legal scholars for decades. Why would a person who grew up in the segregated south issue so many decisions that hurt people of color? Those trying to answer this question have taken it as a matter of faith that Thomas’s decisions have in fact and on the ground hurt racial minorities. But conservatives dispute that premise, so it is important to establish how truly awful Thomas’s jurisprudence has been for non-white Americans. Why he has engaged in this path of racial destruction is less important than assessing the damage his decisions and his rhetoric have...

Much of the oral argument yesterday in Moody v. Netchoice focused on the fact that the respondents brought a facial challenge to Florida's law forbidding (as the Eleventh Circuit described it ) "certain social-media companies from 'deplatforming' political candidates under any circumstances, prioritizing or deprioritizing any post or message 'by or about' a candidate, and, more broadly, removing anything posted by a 'journalistic enterprise' based on its content." Why is that significant? Because under the Court's precedents, a facial or overbreadth challenge to a law regulating speech can succeed only if the challengers can demonstrate that the law is "substantially" overbroad, as "judged in relation to [its] plainly legitimate sweep." Neither the plaintiffs/respondents nor the defendants/petitioners thought that was a problem. Florida Solicitor General Henry Whitaker claimed that the state law is not overly broad because...

The Alabama Supreme Court's ruling that frozen embryos are people almost immediately led fertility clinics around the state to halt their in vitro fertilization (IVF) treatment programs. That result was entirely predictable. IVF requires the creation of "extra" embryos. Given the burden and cost of egg retrieval as well as the risk that any given embryo will not successfully implant or will lead to a pregnancy that miscarries, fertility doctors retrieve multiple eggs. And because frozen embryos lead to a higher pregnancy success rate than frozen eggs that are fertilized after defrosting, standard procedures yield those extra embryos. But frozen embryos are what the Alabama Supreme Court calls "extrauterine children," so now IVF creates a substantial risk of legal liability. The recent Alabama Supreme Court decision construed the state's Wrongful Death of a Minor Act , which provides a civil cause of action for the minor's parents. It left open the poss...

In 2018, Professor Jud Campbell, now of Stanford University, wrote a pathbreaking article in the Yale Law Journal demonstrating that our current first amendment doctrine is almost exclusively based on common law constitutionalism, not text or history. There may or may not be anything wrong with that way of enforcing the first amendment but it is ironic that a Court full of alleged textualists and originalists issues decisions on a yearly basis enforcing free speech principles without persuasive grounding in text or history. Although a few originalists have tried to address Campbell's descriptive account, none in my view have come remotely close to persuasively rebutting Campbell's thesis.  And now comes Professor Ronald Krotoszynski, Jr., whose excellent article, " Common Law Constitutionalism and the Protean First Amendment ," makes very similar arguments as to the complete irrelevancy of constitutional text and history to judicially crafted first amendment doctrine...

In what was almost assuredly the final minute of my most recent fifteen minutes of fame (which was sparked by a NYT article in early December 2023), I appeared on a podcast a few weeks ago.  Hosted on the Inside Higher Ed site, "The Syllabus" bills itself as a podcast about campus politics.  My conversation with the host lasted about 45 minutes, 23 minutes of which ended up going into the podcast, which was posted early this month. The host, Mark Oppenheimer, and I spent the bulk of the time talking about why university faculty tend to be Democrats rather than Republicans (and whether that is at all important), a discussion that I will summarize and extend in a future column.  To my pleasant surprise, however, Mr. Oppenheimer had also gone to the effort of reading quite a few of my columns here on Dorf on Law , including my writings about the Stanford Law incident last year in which a far-right federal judge auditioned to be the next Supreme Court diva (which I summari...

On Monday, I noted that the Supreme Court had continually re-listed an important case involving a challenge to facially race-neutral admissions criteria for a Fairfax County, Virginia, magnet school. Yesterday, the Court finally denied certiorari. Justice Alito, joined by Justice Thomas, dissented from the cert denial in Coalition for TJ v. Fairfax County School Bd . The dissent makes a number of key points to which I anticipatorily responded in my forthcoming Texas Law Review article,   Race-Neutrality, Baselines, and Ideological Jujitsu After Students for Fair Admissions . Here I'll say a few words about what's wrong with the Alito/Thomas dissent in Coalition for TJ . The starting point for my forthcoming article, for a recent article by Professor Sonja Starr in the Stanford Law Review , and for a large body of scholarship that she and I each cite, is that for many years the conservative Justices on the Supreme Court have pointed to facially race-neutral means of achieving...

Last year, in the course of severely curtailing race-based affirmative action in higher education (and likely in other contexts too), the majority opinion of Chief Justice Roberts in Students for Fair Admissions (SFFA) v. Harvard  appeared to throw admissions officers a bone. Although they could no longer consider an applicant's race per se , they could give weight in evaluating admissions essays to an "applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise." Is that a viable loophole? If a selective college or university makes a good-faith effort to measure applicants' experiences of race (but not race itself), and the result is a racially diverse class, will that create a risk of liability when the same groups that waged a successful decades-long battle to end expressly race-based affirmative action inevitably sue, arguing that the defendant institution is really just using experience of race as a proxy f...

As I discussed  on the blog last week and in a Verdict column earlier this week, the oral argument in Trump v. Anderson   indicated that SCOTUS is likely to reverse the Colorado Supreme Court on the ground that a federal actor, not each of the fifty states, should make the key decisions regarding who becomes President. In my view, that would be seriously misguided because it's practically a non sequitur. For better or worse (okay, almost entirely for worse), the U.S. Constitution expressly grants the states the primary role in choosing the President--even to the point that states can, if they so choose in advance, select their Electors for the Electoral College by means other than an election. No one who has taken high school civics, much less any Justice of the Supreme Court, could reasonably conclude that states are somehow barred from deciding important questions regarding Presidential elections. I'm not alone in that conclusion. In a thread on X , Prof Jed Shugerman repo...

In a column last week here on Dorf on Law , I wrote: "Some days, I find that I can write about, say, business regulation or fear-mongering about the federal debt.  Too often, however, it is impossible to ignore that there is now open talk of political killings ."  That last reference was merely an example -- and not even a uniquely worrisome one in the current environment -- of how crazy each day's Republican/Trump-related news has become. In the nine days since I wrote that column, I have managed to write my two regularly scheduled columns on relatively normal law/policy/economics topics: (1) an analysis of a Supreme Court case that is ridiculous but in a non-Trumpy way, and (2) a discussion of how the "behavioral revolution" in economics is not merely the bullsh_t that it obviously was all along but is also rife with academic fraud and is pushing real-world policy in dangerous, trivial, or self-defeating directions.  I thus succeeded for a solid week in c...