Friday, August 12, 2022
The Search Warrant Freakout is Bad for Everyone, Including Republicans
Thursday, August 11, 2022
Mets or Yankees? A Very Self-Indulgent Personal Reflection on the Nature of Loyalty
by Michael C. Dorf
I begin with an apology to my readers who are not sports fans or to those who are sports fans but, like Prof Segall, think baseball unbearably boring. I don't entirely disagree with Prof Segall. My first love (both to play and to watch) was and remains basketball, but today I'm going to write about baseball--and some broader themes with which it connects. I'm the Dorf in Dorf on Law; it says right there at the top that we cover law, politics, economics, and more. Today I want the distraction of baseball. And as I hope becomes clear, I'm using baseball at least partly as an entry point to talk about free will, human relations, and . . . well . . . more.
So . . . the Yankees and Mets are both having outstanding seasons. Although the Yankees started stronger, the smart money is on the Mets to finish with the better record and to fare better in the postseason, now that they have two of the best active pitchers in the majors--Max Scherzer and Jacob deGrom--anchoring their staff. The Dodgers are currently the best team in baseball, but two aces gives the Mets a better chance to get past them than the Yankees' chances of besting their recent nemesis Houston. Indeed, although the Yankees were having a truly historic season until the All Star break, their poor record since then suggests they might lose a first-round playoff series.
Still, the Yankees' best player--outfielder Aaron Judge--is putting up MVP numbers and, absent injury or a prolonged slump, will be the first player to hit 60 or more home runs in a season since Barry Bonds hit an astounding 73 home runs in the 2001 season. Bonds's record is tainted, as are the single-season marks of Mark McGwire and Sammy Sosa. All of them were were juicing. Really, no one other than Yankees Babe Ruth (60 in 1927) and Roger Maris (61 in 1961) has had 60 or more untainted home runs in a season. Purists might say that Ruth still holds the record, as he hit his 60 in a 154-game season. Maris broke the record in the first year of the 162-game season. Still, 60 has been rightly treated as the magic number even in the 162-game era. Meanwhile, the steroids era thus tends to obscure the closest thing we've seen to the feat in recent years--then-Marlin/now-Yankee Giancarlo Stanton's 59 in 2017.
Wednesday, August 10, 2022
What the End of Democracy Looks Like in Real Life
Tuesday, August 09, 2022
Justice Clarence Thomas' America: Straight, Color-Blind, Religious, and Heavily Armed
By Eric Segall
Justice Clarence Thomas has been on the Supreme Court fourteen years longer than any other current Justice. If Thomas serves six more years, which is highly likely, he will be the longest serving Justice in American history. His law clerks have become judges and elected officials all over the United States. Let's take a look at his constitutional vision for the United States of America.
One caveat. The other conservatives on the Court agree with much of what I discuss below. But none of them (at least so far) agrees with all the cases and legal rules that make up Justice Thomas' jurisprudence and none of them agrees (at least openly) with his radical views on precedent, which I leave for another day.
Monday, August 08, 2022
The DCCC's Dangerous and Dirty Midterms Gamble
by Michael C. Dorf
As most of my readers are probably aware, in the midterm primary elections, the Democratic Congressional Campaign Committee (DCCC) has been funding ads labeling various Trump-aligned Republicans as "too conservative" for the constituents in purple districts in which they're running, knowing and intending that Republican primary voters would be attracted by the ads' highlighting of the candidate's association with Trump. The DCCC calculates that a Democrat has a better chance of defeating a more extreme right-wing candidate than of defeating a more traditional Republican.
The most prominent example of this strategy in the current cycle was support for ultimately successful challenger John Gibbs to displace incumbent Michigan Republican Peter Meijer--who was one of the ten Republican House members with the courage and integrity to vote to impeach Trump after the January 6 insurrection. Meijer and other principled Republicans are understandably outraged. After recording a few caveats, I'll explain why I mostly agree with them.
Friday, August 05, 2022
Please Stop Talking About the Equal Rights Amendment
by Sherry F. Colb
I have lately heard a tremendous amount of commentary about how, if we were to recognize the Equal Rights Amendment (ERA) as law, women could wrest their right to control their most intimate bodily autonomy from the creeps that currently dominate the Supreme Court. One commentator in particular explained in an LA Times op-ed and then again on the NPR podcast/radio show On The Media that the reason the ERA would be so effective in protecting the right to abortion is that the Court had, up until this most recent benighted Term, identified the right as one of "privacy." Privacy, she explained, does not expressly make an appearance in the Constitution. But the ERA would "explicitly" protect women's entitlement to equality with men. Therefore, she said, President Biden could instruct the Archivist of the United States to carry out his statutory responsibility to certify the ERA's ratification, and that would "cement[]" and "finaliz[e]" the right to abortion in a way that "privacy" could not.
Perhaps I am missing something, so I acknowledge that there might be something to this argument that I do not see. But from where I stand, I think the argument is so completely lacking in substance that I am rather stunned that a major American newspaper and an excellent show like On The Media would have given such nonsense a platform. The one correct statement by the commentator was that lacking an express enumeration of a constitutional right renders the right vulnerable to misogynists who choose to turn to folks like Sir Matthew Hale from the seventeenth century for guidance on women's status in the twenty-first century. If the ERA said explicitly that women (and trans men and nonbinary people) have a right against forced pregnancy and birth, then the ERA would be the perfect response to the 70-page sick bag that Sam Alito (SA) just handed to half the population. But it does not. The ERA says nothing explicit about abortion; it speaks only about equality.