Dorf on Law

On Monday, the federal Department of Education (DOE) launched a Title IX investigation into Smith College for its practice of admitting transgender women and according them the same respect as other students. Smith is, famously, a women's college, having produced such notable alums as Sylvia Plath, Gloria Steinem, and Julia Child. (Full disclosure: my younger daughter is currently a senior at Smith, scheduled to receive her degree in just over a week.) The DOE press release  says that the government is investigating Smith "for admitting biological men and granting them access to women-only spaces, including dormitories, bathrooms, locker rooms, and athletic teams." It includes the following statement by Assistant Secretary for Civil Rights Kimberly Richey: "An all-women’s college loses all meaning if it is admitting biological males . . . ." The term "biological males" is Trump-administration-speak for "trans women." But here's the thing....

On Friday of last week, the Fifth Circuit issued an order effectively banning "mail-order abortions" via mifepristone on a nationwide basis. Its ruling temporarily voided the FDA rule, formally adopted in 2023, that permits doctors to prescribe mifepristone via remote consultations, with the pills to follow in the mail. Readers will recall that two years ago the Supreme rejected a similar effort in FDA v. Alliance for Hippocratic Medicine . In that case, doctors who opposed abortion sought to challenge both the 2023 expanded access FDA rule and the original 2000 FDA approval of mifepristone. The Court found that such doctors, who did not themselves prescribe mifepristone, were asserting a too-speculative claim when they averred that they might have to treat patients who suffered complications from mifepristone. The doctors' group thus lacked standing. The current case was brought by the state of Louisiana. According to the Fifth Circuit, the state has standing where the ...

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...