Dorf on Law

The country and the world have had four weeks to process and try to explain the outcome of the 2024 US elections, but the analysis is not getting any better.  Joe Scarborough's hot take on the morning after the election that it was a "red wave" unlike anything since Reagan's 1984 landslide was obviously wrong even before the later vote-counting turned Donald Trump into "Mr. 49.8."  (In a November 22 column , I called Trump "Mr. 49.9" but promised that I would adjust that moniker as appropriate .)  All of the other nonsense -- blaming "the left" for caring about pronouns, and on an on -- has been as predictable as it is infuriating. And none of that misanalysis has changed or been updated, even given nearly a month to reconsider the situation and pay attention to something called data.  Unfortunately, that failure to update opinions in the face of a fearful new world is not limited to assessments of the election itself.  Despite the Hercu...

When the Supreme Court eliminated the constitutional right to abortion in 2022 in the Dobbs case , the three dissenting Justices worried--and Justice Thomas in a concurrence hoped--that the ruling portended the elimination of other unenumerated rights. Justice Thomas named Griswold v. Connecticut   (finding a right of married couples to use contraception), Lawrence v. Texas  (finding a right of consenting adults, including gay adults, to sexual intimacy), and Obergefell v. Hodges  (extending the marriage right to same-sex couples), as among the precedents he wished to reexamine. Justice Alito's majority opinion disclaimed any interest in overruling these or any other cases not involving abortion, but his ground for distinguishing the other rights was a non sequitur : they don't involve the destruction of human life or potential life; that's a non sequitur because the Court's rationale for rejecting the abortion right was that it lacked a proper historical pedigree circa...