Dorf on Law

On Tuesday, the Supreme Court, in an opinion by Justice Sotomayor , invalidated the murder conviction (and thus also the death sentence) of Richard Glossip and sent his case back to the Oklahoma courts so that they can either release Glossip or retry him (for what would be his third trial on this charge).  The Court first held that the reliance by the Oklahoma Court of Criminal Appeals (OCCA) on the state's Post-Conviction Procedures Act (PCPA) to bar Glossip's effort to have his conviction reversed was not an independent state law ground that deprives SCOTUS of the power to review the decision because the OCCA's PCPA ruling was itself based on an evaluation of the strength of Glossip's underlying federal claims. Thus, the PCPA ruling was ultimately based on federal grounds. Notably, this was not the possible ground for lifting the procedural bar that received the most attention during the oral argument; I blogged about that and more back in October . Second, and on the...

One of the many, many jaw-dropping developments that were drowned out by all of the even more outrageous news items in the past 38 days came from the Musk-Trump administration's Transportation Secretary, Sean Duffy (a former reality TV "personality"), who "instructed his department to prioritize families by, among other things, giving preference to communities with marriage and birth rates higher than the national average when awarding grants." Just by coincidence, this will predictably take funds that would have gone to blue states and instead give them to red states.  How much of a non-coincidence was it? The memo also calls for prohibiting governments that get Department of Transportation funds from imposing vaccine and mask mandates, and requiring their cooperation with the administration’s immigration enforcement efforts. With hundreds of billions of dollars in transportation money still unspent from the 2021 bipartisan infrastructure law, such change...

When Donald Trump, Elon Musk, and the Republican Party ("GOP") rant incessantly about the evils of Diversity, Equity & Inclusion ("DEI") programs and work to end them everywhere the federal government has any leverage, they are moving the Overton Window dangerously and dramatically. The question used to be what tools can and should the private and public sectors use to offset the effects of this nation's longstanding institutional racism. That question is terribly difficult, and reasonable people can disagree as a policy matter about the desirability and efficiency of overtly race-conscious programs to further a less racist future. But the GOP is not just arguing that DEI programs should be abolished but also that these programs are the cause of much of the pain this country is feeling today. Would-be-authoritarians love scapegoats and it appears that people of color (along with undocumented immigrants, their children, and the trans community) are the GOP...

Unless and until the Trump administration persuades Congress to eliminate the Department of Education (DOE) or, as with various other federal agencies subject to the diktats of Elon Musk, illegally eliminates the DOE on his own, the administration will use the DOE as a weapon in its multi-front war on DEI. A key illustration is a February 14, 2025 “Dear Colleague” letter from the Acting Assistant Secretary of Education regarding the administration’s understanding of the legal obligations imposed by Title VI. The Valentine's Day Dear Colleague letter asserts that "[e]ducational institutions have toxically indoctrinated students with the false premise that the United States is built upon 'systemic and structural racism' and advanced discriminatory policies and practices." The letter advises recipient institutions (which include just about every educational institution in the country) to take various measures and make various reports or "face potential loss of ...

The neo-Nazi party polled better than ever in Germany's federal elections yesterday, but the overall results will allow the two mainstream parties to form a coalition government that is much more stable than the uncomfortable alliance of three parties that is now going out the door.  More importantly, this means that the " firewall " that Germany's anti-Nazi parties have created around the far-right AfD will apparently continue to hold, making both President Elon Musk and Vice-Vice President J.D. Vance both very unhappy.  (Musk, in fact, decided to call the losing AfD leader to congratulate her, despite falling short.) That is very good news, relatively speaking, and I will use it as a reason to spend today not thinking exclusively about the wave of awfulness that threatens to crash over the world.  What to talk about instead?  Economic policy, of course! The one deep truth about market economies is that they are only partially manipulable by dictators, in large pa...

I have been trying for years to warn people about the dystopia that is now upon us, but now that it is here, I find myself surprisingly non-despondent.  That is partly because we are learning the answer to the fundamental question of our time -- What's the worst that could happen? -- and no longer have to imagine something even worse.  In addition, however, there are in fact small glimmers and faint flashes of what I vaguely recall is called hope. Two weeks ago, I offered some reasons to believe that all is not lost, both in a Verdict column and a companion column here on Dorf on Law .  I have now added to that body of work in a new Verdict column that was published yesterday: " More Reasons to be Guardedly Optimistic ."  That piece was somewhat longer than usual, so I will spare my readers by being relatively brief here. Probably the most important point that I make in yesterday's column has to do with whether Donald Trump's supporters will become disaffected ...

In an Executive Order (EO) signed on Tuesday of this week, President Trump sought to undercut the independence of independent agencies. The EO, titled "Ensuring Accountability for All Agencies," imposes various restrictions on such agencies. As I'll explain, some of these restrictions are permissible. Others aren't, or at least shouldn't be--unless Congress lacks the power to create independent agencies in the first place. Although the Trump 2 administration pretty clearly thinks that's the case, it isn't the current state of the law. After parsing the order, I'll explain a pathway to challenging it in court. As a preliminary matter, I've seen some online chatter to the effect that the EO purports to make the president and the AG the universal final authorities on the meaning of federal law, superior even to the courts. That's plainly not what it says. Rather, the EO makes them authoritative within the executive branch. But is even that more l...

One of the esteemed South African Constitutional Court's most famous decisions is President of South Africa v Hugo . To celebrate the new democracy, President Mandela pardoned all imprisoned women, with children, who committed non-violent offenses. Then a similarly situated male prisoner sued, claiming he had a child and this violated his right to equality. But the Court first had to answer whether the claim was justiciable. The Court said yes, though the man still lost. The Court emphasized that it could likely not adjudicate a single pardon, but this was a group pardon favoring a subordinated gender. The Court referenced other countries where pardons could be examined and looked at British law. So if Republicans feel free to argue that birthright citizenship under the Fourteenth Amendment is much narrower than heretofore understood, why aren't Democrats even more justified in asking courts to question the irrationality of pardoning those individuals who committed violence o...

My latest Verdict  column discusses the wave of resignations by Department of Justice lawyers following the demand by acting Deputy Attorney General (and until very recently Trump defense lawyer) Emile Bove that SDNY prosecutors file a motion seeking dismissal of the corruption charges against NYC Mayor Eric Adams. In addition to praising the integrity of the lawyers who resigned, I locate the issues at stake in the confrontation within the larger context of the Trump 2 administration's efforts to induce SCOTUS to adopt a super-strong version of the unitary executive theory. Here I want to address a related question: Did the DOJ lawyers who resigned rather than do Trump's dirty work accomplish anything thereby? To cut to the chase, the answer is a resounding yes. Even if some utilitarian calculus could show that by doing Trump's bidding the DOJ lawyers could have mitigated the awfulness of other aspects of the administration's actions, it would still have made sense to...

As soon as Donald Trump signed his executive order last month purporting to end birthright citizenship, the smart money was on the Supreme Court finding a way to ignore more than a century of settled constitutional law and give Trump what he wants.  The same Court that abetted his reelection at every step and then shocked everyone by inventing an excuse to give him presidential immunity would surely not disappoint him on an immigration-related issue.  Who cares how much rewriting of the law would be required?  And who cares that finding in favor of Trump would inflict gratuitously cruel harm on vulnerable people in the real world? Any time it becomes obvious that the Court will soon be looking to invent new law, people will come out of the woodwork to offer some "innovative" take on the issue.  That is one way that "off the wall" ideas become "on the wall," in Jack Balkin's famous formulation .  That it took a full 26 days for a Trump-friendly effort t...