Dorf on Law

  By Eric Segall Here are my top ten observations (in no particular order) about the affirmative action oral arguments from Monday. 1) No one seemed to care that the University of North Carolina is only 8% Black in a state where Blacks make up 21% of the population. These facts seem important to me. 2) Justice Gorsuch really, really hates the sport of squash. If you didn't listen, don't ask. 3) No one seems to care that the Massachusetts legislature is only 2% Black while the state is 9% Black. These facts seem important to me. 4) The conservative Justices asked almost no questions about the original meaning of either the 14th Amendment or Title VI. I think we all know why. 5) The conservative Justices seemed obsessed about the statement by Justice O'Connor in Grutter v. Bollinger that she expected affirmative action to not be needed in 25 years. At my law school a few years ago, she said unequivocally she meant that sentence as aspirational and that too much has been ma

by Michael C. Dorf The two challenges to race-based affirmative action that the Supreme Court will hear today mostly overlap, but two factors distinguish them from one another. First, a full complement of nine Justices will participate in the University of North Carolina case, while only eight Justices will participate in the Harvard case (because Justice Jackson has recused herself). Second, UNC is bound by both the Fourteenth Amendment's Equal Protection Clause and Title VI of the 1964 Civil Rights Act, whereas Harvard is bound only by Title VI. Here I want to focus on that second factor. Much of the attention to the cases (including by me in my post on Friday ) has focused on the constitutional issue, presented in only the UNC case. But the Court could avoid saying anything about the Constitution by ruling that the statute forbids race-based affirmative action. Here's the key language of Title VI : "No person in the United States shall, on the ground of race, color, or

  by Michael C. Dorf My latest Verdict column criticizes the recent turn to history by the SCOTUS conservative super-majority on a number of grounds, some of which will be familiar to readers who follow debates over originalism and constitutional interpretation but one of which I believe is at least somewhat novel. I explain that there is the potential for the Court either to destabilize nearly all of constitutional law or else merely shift the terms but not the substance of the debate. Here's the core of the argument: [T]he shift to a history-alone approach creates a boundary problem. If old precedents using other methods are presumptively preserved via stare decisis but new cases will be decided using the history-only method, one must have some further method for distinguishing old from new. That itself is a tall order, because lawyers typically do not ask for a brand new rule of law. Instead, they contend that the court should simply apply an existing rule or standard in a sl

by Neil H. Buchanan We have all become accustomed to Republicans’ increasing willingness simply to lie about the world.  Claiming that Critical Race Theory is taught in the schools (which they supplement with the absurd sub-lie that kids are being indoctrinated to "hate" themselves for being White) and that abortions are performed as late as the moment of birth are only two of the most commonly repeated lies .  And of course, literally hundreds of Republican candidates for office this year refuse to admit that the 2020 election was free and fair and that their side lost. Even so, it is worth remembering that some of the more common deceptions in the Republican playbook are not direct factual misstatements but instead rely on a completely nuance-free insinuation that everything is an all-or-nothing choice.  Either you are in favor of the Iraq War or you "hate America."  Either you want to throw every brown-skinned person out of the country or you favor "open bo

by Neil H. Buchanan Two weeks ago, when former Federal Reserve chair Ben Bernanke won this year's faux -Nobel in economics, I wrote: " How Did We Luck Out at the Fed? "  Bernanke had always been a reliably orthodox conservative economist, with all of the standard credentials that would make him an obvious choice by a Republican president to run the nation's central bank.  When George W. Bush tapped Bernanke in 2006, the choice was not depressing but certainly counted as uninspired.  My column, however, argued that Bernanke had ended up being a brilliant Fed chair. History sometimes confronts people with opportunities for greatness or catastrophic failure, and the global financial crisis of 2008-09 allowed Bernanke to prove that he was neither a hack nor an ideologue.  That was our good luck, because there are plenty of people who have served in that position (and others who were surely on Bush's short list when Bernanke was chosen) who would have made horribly wr

By Eric Segall Last June in the Dobbs decision, the Supreme Court gave the American people a firm lecture on the importance of textualism and states' rights. The majority opinion written by Justice Alito repeatedly argued that, because the right to terminate a pregnancy is not in the Constitution's text and was not protected as an original matter in 1789 or 1868, the difficult issue of abortion should be left to the states. Justice Alito wrote the following: Abortion presents a profound moral issue on which Americans hold sharply conflicting views.... For the first 185 years after the adoption of the Constitution, each State was permitted to address this issue in accordance with the views of its citizens. Then, in 1973, this Court decided Roe v. Wade .... Even though the Constitution makes no mention of abortion, the Court held that it confers a broad right to obtain one. It did not claim that American law or the common law had ever recognized such a right. The plaintiffs and

by Michael C. Dorf On Thursday, Justice Barrett swiftly and rightly rejected the emergency petition by Wisconsin taxpayers challenging President Biden's student loan forgiveness plan. The petition was procedurally absurd. It claimed that the taxpayers had standing because by forgiving debts owed to the federal government, Biden would increase the federal deficit, which in turn would require more revenue to close the gap, which in turn would increase their tax liability. The main difficulty with this theory is that the Supreme Court long ago rejected the idea that taxpayers have standing qua taxpayers. (That's different from challenging a tax one claims is itself illegal, although even then, a federal statute requires one to pay the tax and then sue for a refund in the tax court.) There's an exception to the no-taxpayer-standing rule that allows for taxpayer standing to challenge direct expenditures alleged to violate the First Amendment's Establishment Clause, but in r

by Sidney G. Tarrow When, on June 24th, the Supreme Court effectively liquidated Roe v Wade , scholars of social movements and abortion rights shook their heads – but not in disbelief. Though most of them assuredly abhorred the decision, it dovetailed neatly with the dominant theorization of the relations between courts and movements. The Court –the  theory goes – was reflecting the triumph of a “long movement” – one that went back to the reaction to Roe and its amplification of a movement reflected in rightwing organizations like the Federalist Society and the realization of conservative politicians like Ronald Reagan that they could win by embracing the agenda of the Christian Right. “You cannot support me,” Reagan famously said to his Christian conservative listeners; “But I can support you!” Echoing a point she made in a law review article she co-authored with Robert Post  a decade and a half earlier and writing in the  Washington Post  the day after  Dobbs was officially handed d

by Neil H. Buchanan Yesterday, in " Support for Horrible Politicians (Herschel Walker and Liz Truss edition, with cameos by Donald Trump and Bill Clinton) ," Professor Dorf commented on the nonstop series of disqualifying scandals engulfing Republican candidate Herschel Walker -- a column that of necessity had to include an acknowledgement that those scandals might not be disqualifying enough to make Walker lose his race against Senator Raphael Warnock.  Why?  Because power.  That is, for Republicans who want to take back the Senate and exercise/abuse the power that their renewed majority status would bring, "support for Walker--or for Satan himself were he to run as a Republican--is instrumentally rational," as Dorf put it. That is surely true and interesting, and it is merely the leaping off point for the rest of yesterday's column.  Notably, in the less than 24 hours since that column was published, the second politician named in its headline -- Liz Truss --

by Michael C. Dorf Why are most Georgia Republicans and the national Republican Party's leaders and donors still supporting Herschel Walker for Senate, even after learning that he is a shameless hypocrite who condemns absentee fathers and abortion even as he is an absentee father who encouraged and paid for an abortion for a woman whom he impregnated (and who had the abortion and, despite further abortion advocacy from Walker, later birthed one of those children whom Walker abandoned)? I suppose that for some, perhaps many, of the conspiracy-theory-minded rank-and-file members, it's because they disbelieve all negative news stories about their team. But many other Republicans acknowledge that Walker is a loathsome hypocrite. Still they regard his very serious personal failings as much less important than control of the Senate, where he will surely be a reliable vote for the party's agenda. Given their goals, support for Walker--or for Satan himself were he to run as a Repub

by Neil H. Buchanan How does everybody know what "everybody knows"?  That question has been lurking just under the surface in my writings recently, as I have been pushing back yet again against the widespread quasi-religious belief that DEBT IS HORRIBLE, HORRIBLE, HORRIBLE!  Last week, The New York Times offered a particularly silly example of the everybody-knows-the-national-debt-is-a-problem genre of news analysis -- lacking both news and analysis -- and I had a great deal of fun picking it all apart in a two - part Verdict column, followed by a complementary Dorf on Law column on Thursday . Today, I followed up that onslaught by writing another Verdict column that was mostly dedicated to answering a question that I had raised and only partly answered in last week's writings: Why is it true (and not a problem) that the national debt only goes up and never down?  Unsurprisingly, I have written about that topic many times, including in a symposium piece ten years a

 By Eric Segall Over the course of the next few weeks, I will be participating in a virtual debate with Professor Ilan Wurman over the alleged return of living constitutionalism (it never went away) for the national student section of the Federalist Society, and then will be talking about affirmative action at a panel at the National Federalist Society Lawyer's Convention (with Michael Carvin among others, so watch out). Many of my progressive friends in the academy will not speak at any Federalist Society events, some will speak only at events sponsored by the students at their schools, and some agree to speak if they are interested and available. In the first two categories are prominent folks I respect quite a bit so I have given much thought to my participation in Federalist Society events. When I announce these programs on Twitter or other places I sometimes get serious pushback, so I wanted explain my reasoning for participating in these programs, and at the same time suggest

  by Michael C. Dorf My most recent Verdict column discusses Tuesday's SCOTUS oral argument  in National Pork Producers Council (NPPC) v. Ross , the pork industry’s challenge to California’s Proposition 12, which bans the sale of meat produced by confining pigs in gestation crates and in other ways that fail to satisfy California's humane treatment standards. The column follows up on an August  Verdict column in which I pondered the potential implications of a victory for California for red-state efforts to ban the importation of abortion pills from other states. Although this week's argument did not focus on abortion pills, the Justices' questions revealed that they are concerned about the implications of a victory for either side. My column concludes that there are slippery slopes in either direction and that therefore perhaps the Court should leave the matter to political processes at the state level (where price-conscious consumers give out-of-state producers vir

by Neil H. Buchanan When did economic policy become a matter of faith?  I am not talking about fringe grifts like the "prosperity gospel," nor am I asking why White Christians in this country have long been intensely loyal to the Republican Party's extreme version of corporate capitalism (which requires them to perform impressive mental gymnastics to clear some rather imposing scriptural hurdles). I am not, in fact, talking about organized religion at all.  My focus here is on the evidence-resistant, stubborn presumptions about economics and other secular issues that we see every day among politicians and commentators, revealing that they are in fact not engaged in reasoned debate but are instead committed to beyond-logic truths that can never be challenged.  This is the essence of religious belief: truth without reason.  (That is not a criticism, because it is what belief is all about.  See countless links here .) One of my first scholarly publications begins with a q

 By Eric Segall On Halloween day, the Supreme Court will hear two cases involving the use of racial criteria in university admissions. The plaintiff in both lawsuits is Students For Fair Admissions (SFFA ), a non-profit association long committed to asking the Supreme Court to take control of thousands of colleges and universities across America and prohibiting them from considering the race of their applicants in any way. One of these cases , against Harvard, is brought under a federal statute, and the other , against the University of North Carolina at Chapel Hill (UNC), is brought under the federal Constitution. I will leave the Harvard case to statutory interpretation experts. This post is about the United States Constitution. Part I of this post addresses the legal issues surrounding a constitutionally required color-blindness rule. Part II shows why such a requirement would, in any event, be extremely difficult to enforce, leading to costly, lengthy, and disruptive litigation in

by Neil H. Buchanan This is the season that the Nobel Prizes are given out, including the fake one for "economic sciences."  I have written more than enough rants about the faux-Nobel in economics over the years, so I will spare longtime Dorf on Law readers another detour down that blind alley.  (Those who are interested or were unaware of the fraudulence of that prize, however, can click here .) Instead, I will use today's column to comment on one of this year's recipients of the Sveriges Riksbank Prize in Economic Sciences in Memory of Alfred Nobel, the former Princeton professor and former Fed Chair Ben Bernanke.  After describing Bernanke's economy-saving work at the Fed, I will then ask how we -- a country that has seen its governing institutions go from bad to worse -- have somehow created and maintained such a fantastic central bank.  Short answer: Lucky, I guess. I am not arguing that the Fed is perfect.  As I will explain (again) below, I think the Fed

  by Michael C. Dorf On Thursday, President Biden pardoned thousands of people who had been convicted on federal charges of simple possession of marijuana. To be clear, none of those people were in prison. Still, as the president explained, a felony conviction stands as a substantial obstacle to employment and full participation in public life. Given how common marijuana use is, it was profoundly unfair that the people who happened to have simple possession convictions--disproportionately people of color, as the president also noted--were burdened with the concrete and stigmatic disadvantages they bore. I applaud the pardons. That said, the pardons do not cover people who were convicted of selling marijuana. Nor do they cover people convicted for violating state laws, because the president lacks power to issue pardons for state crimes. These pardons thus do not solve  the problem of marijuana criminalization, which would require federal legislation removing "marihuana" (and r

by Neil H. Buchanan Given the target audience of  Dorf on Law , the odds are that a relatively large number of our readers are former judicial clerks.  Another group of readers includes lawyers whose friends and associates have held clerkships, while some readers might not be familiar with the phenomenon of clerking at all.  A recent kerfuffle coming out of right-wing judicial circles offers interesting tidbits for everyone, no matter which group one happens to be in. The short version of the story is that some Republican-appointed federal judges have decided to punish Yale Law School's students because of "cancel culture," or something.  It is surely a classic example of group blame, but it is also a reminder that having the word "Judge" in front of a conservative lawyer's name does not stop them from spending all of their time in the fever swamps. To be sure, the now-infamous Judge Aileen Cannon has -- entirely on her own -- made it clear just how ridiculo

by Michael C. Dorf During Tuesday's oral argument in Merrill v. Milligan , Justice Jackson made an originalist move to resist the core contention of the Alabama Solicitor General, Edmund LaCour. He asked the Court to hold that in order to meet their initial burden of production in challenging a state's redistricting plan under Section 2 of the Voting Rights Act (VRA), the plaintiffs must come forward with an alternative map that: (a) provides minority voters with a greater opportunity to elect representatives of their choosing; (b) respects traditional districting criteria (such as compactness, contiguity, and preservation of political units); and (c) does all of that without expressly considering race. Move (c) was the critical one. As various Justices (especially Kagan) and US Solicitor General Prelogar noted, a requirement of race-neutrality as part of the prima facie case would depart from past precedent construing so-called Gingles step 1 (so-named for the case of Thornbur

 By Eric Segall These are trying, scary, and dangerous times for the American left. Despite Democrats having control of both Houses of Congress and the Presidency, there is so much for people committed to gender equality, LGBTQ rights, and democracy to worry about. The Supreme Court ended abortion rights and enlarged gun rights last term, and this year will likely prohibit all affirmative action, further narrow the Voting Rights Act, and continue to privilege religion over virtually all other values. Additionally, the Court may rule that state legislatures engaged in voter suppression and partisan redistricting cannot be controlled by either state supreme courts or state governors. At the same time, large red states such as Florida and Texas have governors who lead in a Trumpian style, except with more political sophistication. In short, as Neil Buchannan has documented on this blog, our country is in real trouble. In the face of these dire threats, SLATE columnist and Supreme Court r

by Neil H. Buchanan As I tried to come up with a title for this column, one of my first ideas was: "Is Anyone Really For Taxes?"  That title makes its own kind of sense, because it is a way of acknowledging that even people like me who defend the basic contours of the US tax system -- and who argue that it should be more progressive and should collect more revenues -- do so somewhat reluctantly.  "Sure, it would be nice to live in a world in which taxes were unnecessary," we might say, carefully using the subjunctive form, "but given that such worlds cannot exist, we can be in favor of taxes without wanting to impose unnecessarily high taxes." That such an argument is true does not change the reality that it is a disastrously defensive position, all but begging the mindless anti-tax people to respond, "See, even the libs hate taxes deep down!"  But the fact is that everyone should love taxes, and we should be clear about what that means.  Peo

by Sidney Tarrow When Giorgia Meloni, the leader of Italy’s “Brothers of Italy” party came first in the Italian national election on September 25th, pundits were quick to underscore her links to America’s panoply of rightwing politicians and media figures. Following her triumph, wrote Yahoo News , “several Republicans praised her win.” Sen. Ted Cruz, R-Texas, hailed the results as  “spectacular,” while Sen. Tom Cotton, R-Ark., tweeted that he looked “forward to working with her,” and Rep. Marjorie Taylor Greene, R-Ga congratulated her on her victory, while Fox News’s Tucker Carlson , called for a Meloni-like future for the United States. A “revolution?” Carlson might not have noted that Meloni’s party won only 26 percent of the vote, compared to the 19 percent gained by its major center-left opponent, the Democratici, or that she will need to ride herd on a motley collection of other rightwing parties , led by former premier Silvio Berlusconi . She does not share Berlusconi’s enthusias