Dorf on Law

In my various essays following the conclusion of the latest SCOTUS term earlier this summer, I emphasized a number of points to push back on the narrative that the Roberts Court was either delivering a mixed set of results to President Trump or, even less persuasively, that it was outright rebuking him. I won't rehash all of my reasons, which are summarized here . Instead, I'll emphasize the framing effect of the extreme positions the Trump administration takes. But first, consider a story. A fool of a father needs to divide a cookie between his two children, Dawn and Don. Dawn says: "I want half the cookie. That's only fair." Don says: "I want the whole cookie." The father says: "Let's compromise. Don will get 3/4 of the cookie and Dawn will get 1/4." In case it's not obvious, the Trump administration is Don in this parable. In the cookie story, it's obvious that the father is acting unfairly to Dawn, but in many circumstances in r...

One of the smaller dramas of recent weeks was the US Senate's confirmation of Todd Blanche as Attorney General of the United States (AG).  I must emphasize that virtually no Trump-era stories are small by historical standards, meaning that "small er "in the previous sentence should be understood in an even more relative sense than usual.  It was a drama that provides some important lessons, however, especially in explaining the continued refusal of Republicans in political office to stand against the Trump regime. It is unlikely that anyone reading this column needs to be reminded that Blanche was a truly terrible choice to be anywhere near the Department of Justice (DOJ).  Even so, a few lowlights will set the appropriate context.  The man who failed while defending Trump against felony charges in New York was rewarded with the runner-up job at DOJ, during which time he took the lead in derailing the Epstein investigation.  His efforts there included meeting i...

In today's Senate primary election, Alaska voters will have many choices, including two named Dan Sullivan. One is the incumbent Republican. The other is a retired schoolteacher from Petersburg, Alaska with the same name. Republicans claim that the man I'll call Teacher Dan is running for the sole (or at least main) purpose of siphoning votes off from the incumbent and thus potentially handing victory to the Democratic challenger in a tight race. That's a plausible allegation given the jungle primary format. The top four finishers in today's primary advance to the general election. If two of those candidates are named Dan Sullivan, that could be enough to tip the outcome in favor of Democratic challenger and current House member Mary Peltola. Is Teacher Dan in it only (or mostly) to siphon votes from Incumbent Dan? A NY Times story today reaches an uncertain verdict. Teacher Dan vociferously denies that he's running as a spoiler/siphoner, professing a desire to tur...

My latest Verdict column discusses the news that the University of Michigan has adopted a policy (beginning in fall 2027) under which undergraduates' first-semester grades will be masked. And when I say the column discusses the news , I mean that literally. While I say a few words about the costs and benefits of the UM policy, I am mostly interested in the fact that it has garnered so much attention. Colleges and universities around the country have numerous policies regarding academic matters such as grades. In any given year, some of them change. Why was this change national news? The answer, I suggest, is that it fits a pre-existing narrative about the place of universities (especially elite ones) within the culture war. In the course of describing the new policy, I note that its main purpose is to ease some of the anxiety that new college students feel, which is more acute now than in the past because of an overall increase in anxiety and other mental health challenges faced b...

Judge Irving Kaufman of the U.S. Court of Appeals for the Second Circuit was an infamous bosshole to his clerks. He frequently pitted them against each other, going so far as to designate one clerk as his favorite and assigning all work to that clerk, who would then be responsible for further divvying it up with co-clerks. But it was easy to fall out of favor with Judge Kaufman, leading the role of favorite--and with it the favored desk--to shift frequently based on the judge's whims. The job of a law clerk involves long hours but clerks rarely quit because a federal appellate clerkship is a plum job that opens doors for an entire career. Most judges have never had a clerk quit. Judge Kaufman's clerks quit on a regular basis. I learned about Judge Kaufman from the lore among Second Circuit clerks (including my late wife, Sherry Colb, who clerked for Judge Feinberg in 1993-94), but I have confirmed nearly all of what I heard from other published accounts, including Martin Siege...

Will we ever reach the point where cars are fully autonomous (that is, driverless)?  If so, how soon?  At that point, will the American political system create -- and enforce -- safety regulations that are not simply blank checks for the tech/auto companies?  And most importantly, when we pour money into driverless cars and the infrastructure that they will require, what are the tradeoffs?  That is, what are the possibly better alternatives that we will leave behind? Last Friday, I returned to the topic of driverless cars, about which I had previously written only twice (in 2016 and 2023 ).  Having written Part 1 of "Now We'll See Whether the Democratic Establishment Truly Cares About Democracy" just the day before, I was burned out and thus chose to delay writing a very heavy Part 2 until Tuesday of this week, intending to write a relatively light Friday column on a relatively apolitical topic.  So much for that.  In closing that column, I con...

How judges should interpret the United States Constitution is an issue as old as the Constitution itself. The myth that the text plays a serious role in constitutional cases can be debunked by simply recognizing that judicial review itself, a power never used by judges anywhere in the world prior to the American colonies, is nowhere mentioned in the Constitution. Nevertheless, as a matter of structure, history, and common sense, the power of judges to refuse to give effect to laws that violate the Constitution is an essential feature of American democracy. Moreover, it is a justifiable conclusion based on a theory of constitutional interpretation I will call pragmatic pluralism (which is a phrase used by some in the sciences as well). Perhaps the best example of judicial pragmatic pluralism comes from one of the most important cases in American history- McCulloch v Maryland . This litigation involved the first important constitutional debate arising after ratification: the constitutio...

For those of us who follow US politics reasonably closely, the 2026 primary season has been quite a ride.  And we are back at it today, with several more states holding primaries.  One of the safest predictions I can make is that lazy pundits and journalists will once again describe conservative Democrats as "moderates," even though there is not even a passing attempt to analyze -- or even to identify -- an affirmative vision of their policy views on economics, foreign affairs, climate, and other issues, much less to show how those views are somehow in the middle of a range of identifiable competing alternatives. Even so, the coverage from both pundits and "straight news" sources will again lean into the same old caricature: wild-eyed lefties versus worried moderates.  How can I be so sure about that?  Because that is what has been happening for years, and the political conversation in this country is nothing if not tediously predictable. Last week, in Part 1 o...