Dorf on Law

An old friend of mine had a go-to joke that made me laugh every time.  Whenever we were watching a TV show or movie, or talking about a natural disaster, or reacting to news about an unprovoked attack by an animal or a person, my friend would say: "What if we tried to reason with them?"  A flock of locusts descends on a town: "What if we tried to reason with them?"  A series of tornadoes tears through the Midwest: "What if we tried to reason with them?"  Rage zombies dismember and eat humans in a post-apocalyptic hellscape: "What if we tried to reason with them?" In a December 2024 column , I referred to a vivid example of the naive idea that my friend was mocking: The second movie in the "Mad Max" saga, the 1981 classic " The Road Warrior ," includes a scene in which The Humungus, the leather-daddy leader of a murderous post-apocalyptic biker gang, makes an offer to a band of survivors who are holed up in a fortified oil r...

During the oral argument in Louisiana v. Callais , Justice Alito repeatedly described the Court's decision in Rucho v. Common Cause as holding that political gerrymandering is constitutionally permissible. For example, at page 12 of the oral argument transcript , he asked this question: "if incumbent protection is a permissible districting criteri[on], then, under Rucho , isn't seeking partisan advantage also an objective that a legislature may legitimately seek?" The "if" there isn't really conditional. It was clear during the argument that Justice Alito thought that both incumbent protection and seeking partisan advantage are legitimate districting goals pursuant to Rucho . However,  Rucho did not hold that political gerrymandering, incumbent protection, seeking partisan advantage, or anything else is constitutionally permissible. It held that challenges to political gerrymandering present nonjusticiable political questions and are thus committed to s...

The Alien Tort Statute (ATS) was enacted by the first Congress as part of the Judiciary Act of 1789 and, with the exception of references to particular federal courts that changed over time, has not been amended since. In current form , it provides: "The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States." In the last decades of the twentieth century, human rights lawyers discovered that they could use the ATS as a means for non-citizens to sue in U.S. courts for human rights violations. The first major case to vindicate this strategy was the decision by the U.S. Court of Appeals for the Second Circuit in Filartiga v. Pena-Irala , which involved a Paraguayan citizen suing another Paraguayan citizen for the torture and murder of the plaintiff's son in Paraguay, where the defendant was Inspector General of Police in Asuncion. The circumstances of the ...

"US supreme court ‘demolishes’ Voting Rights Act, gutting provision that prevented racial discrimination."  That is the headline atop  The Guardian 's news article reporting on the US Supreme Court's insane decision yesterday in Louisiana v. Callais , in which all six Republican-appointed jurists voted to make it possible for more Republican-run states to gerrymander even more Democrats (especially Black Democrats) out of the House of Representatives. When I wrote my most recent column discussing gerrymandering two days ago, I had no idea that Callais was soon to be announced.  Certainly, Professor Segall's column here yesterday was completely accurate in predicting the outcome of the case, but even his timing was pure coincidence. Here are his first three sentences: Any day now, the Supreme Court is going to issue its decision in the complicated election law dispute Louisiana v. Callais . There is no suspense as to the outcome of this case. The Court will ei...

Any day now, the Supreme Court is going to issue its decision in the complicated election law dispute Louisiana v. Callais . There is no suspense as to the outcome of this case. The Court will either eliminate altogether or make it extremely difficult and rare for lower courts and legislatures to take race into account when plaintiffs challenge racial redistricting under the Voting Rights Act (VRA). That decision will will lead to the bizarre result that legislatures can cleverly use racial concerns to redistrict people of color in ways that violate the VRA but not allow judges to effectively provide a remedy for those violations-accomplishing the exact opposite of what the VRA actually requires. This is judicial aggression at its worst. Section 2 of the VRA provides the following: “No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement...

Will the Democrats win both houses of Congress in this year's midterm elections?  Will they only win one?  Will any wins be negated by Republican corruption?  Will the midterms happen at all?  People who oppose the Trump/Republican regime are becoming rather confident.  I remain decidedly pessimistic. As I noted in an abbreviated  Dorf on Law   column this past Thursday, the  Review of Democracy  ( RevDem ) "is  the online journal of the CEU Democracy Institute (the non-university part of Central European University."  Last week,  RevDem  published my two-part analysis of the many ways in which the Republicans could hold onto power this year, notwithstanding polling currently favoring Democrats.  In  " The Threats to Nullify (or Ignore) the US Midterm Elections are Very Real ," I made my only firm prediction, which is that Donald Trump will not outright cancel the elections.  After all, he likes...

Later today, the Supreme Court will hear oral argument in  Chatrie v. United States . The case presents the question "whether the execution of the geofence warrant violated the Fourth Amendment." Wait. The execution  of the warrant? The warrant? And what's a geofence? The case is on cert from a Fourth Circuit en banc decision that my co-blogger Professor  Matthew Tokson discussed and critiqued in July 2024 . Here is how he introduced the case: On May 20, 2019, a man wearing a fisherman’s hat and a traffic vest robbed a bank in Midlothian, Virginia. Unable to identify the robber, police served Google with a geofence warrant—a warrant targeting all cellphone users in a certain area at a certain time. They obtained information on several cellphones in the area of the bank at the time of the robbery, including the phone of Okello Chatrie, who was eventually identified as the culprit. Chatrie challenged the validity of the geofence warrant, arguing that it was unconstitutiona...

To Dorf on Law’s readers: Yesterday, I wrote that I planned to “ return[] tomorrow with some additional thoughts” about the various ways in which Trumpists will try to abuse and mangle the US electoral system to stay in power.   Due to unforeseen circumstances, I am unable to post that column today.  I will return next week to belatedly deliver on my promise. In the meantime, Professor Dorf published an excellent new column today on Verdict: “ The Fifth Circuit Overrules the Supreme Court and Nullifies the Establishment Clause .”  That column should get everyone’s weekends off to a thoughtful start. - Neil H. Buchanan

Yesterday and today, The Review of Democracy  (or  RevDem ) published my new analysis of the Trump/Republican threats to rig or simply negate the results of the 2026 US midterm elections.  Although I originally wrote it as one (long) op-ed, the editors sensibly broke it in two and published the parts under separate titles: " The Threats to Nullify (or Ignore) the US Midterm Elections are Very Real ," and " US Midterms: Will The Results Matter? " My analysis in those op-eds expands upon my  Dorf on Law  column from two months ago, " What Would "Nationalizing the Election" Look Like, and Could It Be Stopped? " Interestingly,  RevDem is an especially important outlet right now, because it has been a key part of the opposition to Hungary's so-called "illiberal democracy."  When I wrote my first op-ed for them last November, I noted in passing in a Dorf on Law column that RevDem  " is the online journal of the CEU De...