Dorf on Law

For the past four years, I have noticed a worrying pattern of Democrats and journalists uncritically accepting the false narrative that Donald Trump could be installed in office through a special House vote, so long as he can push his opponent's electoral vote count below 270 via baseless challenges to their slates of electors.  The Trumpian position -- which, again, some very smart people have accepted as a given -- is that a candidate must receive a majority of the total number of electoral votes that could have been cast , not a majority of the number that actually are cast.  That is not, however, what the Constitution says. In response to this potentially disastrous concession by non-Trumpists, I have written two pieces with Professors Dorf and Tribe ( one in 2020 and the other earlier this week) explaining that the relevant constitutional text in the Twelfth Amendment simply and clearly does not say what Republicans want it to say.  What we now call the "House-decides e

Before turning to the issue teased in the title of this column -- Donald Trump's fascination with ruinous tariffs -- I should come clean and admit that doing so is both awkward and a guilty pleasure.  I will explain the latter in the course of the discussion below, while the sense of awkwardness rather obviously springs from the simple fact that this election is not about tariffs or policy at all. It feels strange -- and borderline irresponsible -- to use my little corner of the internet to talk about anything other than the fascist threat directly facing the country and the world, especially now that the last shreds of deniability regarding Trump's Nazi sympathies have been tossed away.  That Trump is the one who finished the job on himself is in some sense surprising, but also not.  In any case, talking about anything other than the imminent death of democracy is, again, awkward. In a Dorf on Law column last week, I addressed one of the important outstanding questions about

Last Thursday night at a conference at the University of Florida devoted to originalism attended by lawyers, academics, students, federal judges, and the entire Florida Supreme Court, Judge William Pryor, the Chief Judge of the 11th Circuit, gave the keynote address. He told the audience that he had been on the bench for several decades, that he is and always was an originalist, that he had written hundreds if not thousands of decisions, but that he only had to “wrestle with the original meaning of the Constitution in four cases.”  He also said that “inferior” courts such as his are bound by non-originalist Supreme Court cases until the justices change them, and that most of his job in the constitutional arena is to apply Supreme Court precedent. He used the word modest repeatedly to describe the proper mindset for federal judges.  I thought it fascinating that one of the most famously originalist judges in the country, who self-identified that way long before it was cool to do so, sai

Early last week, Professors Neil Buchanan, Laurence Tribe, and I submitted a proposed op-ed to the Washington Post . The Post 's editors accepted the op-ed and originally scheduled it to run last Friday morning but then decided to delay its publication until today, because on Friday it would have competed with too many other op-eds. That struck us as sensible, so we acquiesced in the delay, which would have been fine were it not for  its owner's subsequent craven decision not to endorse a candidate in the presidential election, thereby breaking with a tradition it has almost always followed over the last five decades. Buchanan, Tribe, and I join the chorus of criticism that is rightly raining down on Jeff Bezos for his anticipatory capitulation to the potentially looming dictatorship of Donald Trump. Democracy dies in cowardice. My co-authors and I considered pulling our op-ed but decided not to do so for two main reasons: first, the editors who agreed to run (and provided use

Before Lyndon Johnson nominated him to the Supreme Court, Abe Fortas was Johnson's lawyer and friend. That does not excuse the role that Fortas continued to play as a confidante of Johnson when considerations of judicial ethics and separation of powers ought to have led him to keep the president at arm's length or at least to keep their discussions to matters that did not implicate their respective day jobs. Likewise, Antonin Scalia was friends with Dick Cheney before they became a Supreme Court Justice and Vice President, respectively. Even so, although I agreed that Scalia was not technically required to recuse himself from a case involving the Vice President after a duck-hunting trip they took together, Scalia's behavior and defense thereof were tone-deaf. That said, we can understand  how Fortas wanted to keep up his friendship with Johnson, and Scalia his friendship with Cheney. People who attain power remain people with bonds of friendship that can be painful to seve

It is now beyond merely the conventional wisdom to say that the stakes in the 2024 election make it important that Kamala Harris not only win but that she win by as many votes as possible.  I am not sure where or when conventional wisdom becomes dogma, but on this matter of shared belief, we clearly passed that point a long time ago.  But is there anything more than repetition and a vague head-nodding kind of instinct to back up that idea? In the old days, the logic was that winning candidates not only needed to eke out a victory but to win a Clear Mandate to Govern.  Even before Trump, however, that gauzy notion had already become more than a bit silly.  Most notably, George W. Bush's backers (including Dick Cheney) insisted that he had a mandate coming out of the 2000 mess.  Having lost the popular vote and been bailed out by the Electoral College and the Supreme Court, Republicans still had the gall to insist that "the American people" had voted for Bush's agenda.

My latest Verdict column , titled The Past, Present, and Future of Free Speech in America , takes readers on a very brief tour of the history of free speech protection in the U.S. It's a brief tour because prior to the 1960s there wasn't much such protection. Since the 1990s there has been a consensus among legal elites about the necessity of protecting at least a core of free speech, but among the broader public, free speech tends to be invoked selectively--especially (although not exclusively) on the political right. I describe Donald Trump's claims that he was subject to censorship when he was ordered not to threaten witnesses, jurors, court personnel, or their families during his hush-money trial. Such claims are bogus in their own right but especially hypocritical, given all of the ways in which Trump threatens free speech and the free press. For today's essay, I want to discuss another charge of hypocrisy. The most recent episode of the generally excellent NPR sh

For some reason, people become squeamish about calling out extreme political views (or, more specifically, right-wing political views).  Admirable self-awareness -- "Am I being fair here?" -- becomes a crippling habit of refusing to say that something terrible should be condemned.  When I was coaching a college debate team, the ultimate moment came when one of my students said (sincerely): "Well, what Hitler did could have been right for Hitler ."  There is a gray area between intellectual modesty and depraved moral relativism, but the existence of difficult line-drawing problems cannot mean that we lack the ability or the right to say when things are wrong. This problem is relevant today because of the tendency of too many people to say that it is beyond the pale to accurately describing Donald Trump's encouragement (or at least ex post justification) of political violence as fascistic.  Even beyond his embrace of violence, Trump has revealed himself, over and

I spent last week in Portugal, mostly in Lisbon with some side trips. I was struck by the extent to which museums and the like celebrate the age of discovery without much acknowledgment of the impact of colonialism. The Maritime Museum in Belem is a vivid but hardly unique illustration. It is through and through a celebration of Vasco da Gama and other Portuguese explorers of the 15th through 17th centuries. Even more strikingly, it is a celebration of colonialism. Among a great many artifacts, displays, and reproductions, I saw exactly one small wall display acknowledging any role of Portuguese seafarers in the slave trade. And that display downplayed this role, first by noting (correctly) that slavery in Africa pre-dated Portuguese export of enslaved Africans to Europe and the Americas and then by highlighting eventual 19th-century efforts by Portugal to combat the trans-Atlantic slave trade. The treatment of slavery at the Maritime Museum and elsewhere in Portugal reminded me of wh

On October 25, I am travelling to an originalism conference at the University of Florida sponsored by the Federalist Society and attended by judges of the Florida federal district courts, the entire Florida supreme court, and several Eleventh Circuit judges, including keynote speaker Judge Bill Pryor, whom I have severely criticized in writing and in public . I am on a panel devoted to originalism on the ground. As the Supreme Court heads towards possible political showdowns in November over the future of the American presidency and maybe America itself, it is important to focus on the amount of harm that judicial lip service to originalism plays in the Roberts Court’s caselaw. Below is a list of points that I intend to flesh out at the conference to demonstrate how originalism is nothing less and nothing more than a cover for the conservative justices’ modern value choices and current political ideologies. Originalism is the Emperor's New Clothes of constitutional interpretation