Showing posts from July, 2020

A Preview of SCOTUS Term Review: Theocracy Edition

by Michael C. Dorf On Monday of next week, I shall participate in the Practicing Law Institute (PLI)'s 22nd Annual Supreme Court Review (as I have done each year since it began). Although the day's activities will be entirely online due to the pandemic, I look forward to seeing old friends, and once again the faculty is a star-studded cast: joining co-chairs (Berkeley Law Dean) Erwin Chemerinsky and (Touro Law Emeritus Professor) Martin Schwartz will be Professors Sherry Colb (Cornell), Leon Friedman (Hofstra), Melissa Murray (NYU), Burt Neuborne (NYU), Cristina Rodriguez (Yale), and Ted Shaw (North Carolina), as well as prominent attorneys Miguel Estrada (Gibson Dunn), Judson Littleton (Sullivan & Cromwell), and Janai Nelson (NAACP LDEF), with journalist Joan Biskupic (CNN) and me rounding out the group. Coming off a fairly momentous Term, I expect that we will give the most attention to the following issues: the role of CJ Roberts in both dominating the Court and moving

The Trump Campaign as Protection Racket

by Neil H. Buchanan With so many things going so horribly wrong in the world, this is not a good time for a politician to be running as an incumbent (at least one who is a member of the party in power).  Facing a daunting political environment, losing politicians can turn to a fairly standard set of desperate ploys to turn things around. Donald Trump is in most ways not at all a standard politician -- and I continue to reject the idea that he has any grand strategies or actual political acumen -- but he most certainly is acting like a standard-issue political loser in the sense that he is flailing about, looking for scapegoats and trying to get out from under the weight of his own terrible decisions. Much has already been written about Trump's " little green men " gambit -- sending untrained paramilitaries into Portland, Oregon -- but here I want to focus on how that leading-edge-of-fascism idea fits into the "legitimate" side (more on those scare quotes pre

Justice Kavanaugh's Calvary Chapel Dissent Misstates Free Exercise Law

by Michael C. Dorf Late last week, in Calvary Chapel Dayton Valley v Sisolak ,   the Supreme Court denied a Nevada church's request for injunctive relief against state COVID-19 rules that limit in-person worship services to 50 people. The church pointed to Nevada rules that permit other places where people gather indoors for sustained periods of time--including casinos, bowling alleys, and restaurants--to be open at 50% capacity, even if their regular capacity greatly exceeds 100. The Court denied the request 5-4 without giving a reason, but it is relatively easy for readers to infer that the majority thought the case was sufficiently similar to its May 29, 2020 decision in South Bay United Pentecostal Church v. Newsom  to warrant the same result. In South Bay , a church complained that California was discriminating against religion by subjecting worship services to greater restrictions than some other facilities, such as grocery stores and marijuana dispensaries. Concurring in the

Remedial Collapse in Portland

By Matthew Tokson Last week in Portland, federal officers seized at least two protesters without probable cause, threw them in unmarked vans, and interrogated them inside a federal courthouse . There is little question that these seizures violated the Fourth Amendment. But whether there will be any meaningful legal remedy for these wrongs remains in doubt.  As anticipated by Michael , Judge Mosman of the US District Court for Oregon ruled on Friday that Oregon lacked standing to challenge the federal government's seizures of its citizens. The decision turned on parens patriae  doctrine, which allows a state to sue on behalf of its citizens when it has an interest apart from the interests of the private parties and a "quasi-sovereign interest" that has been violated. Judge Mosman ruled that Oregon lacked a quasi-sovereign interest in preventing its citizens from being arrested without probable cause, at least where only two citizens have been unlawfully seized so far. A

June Medical and How to Talk About Abortion Part III

By Eric Segall In the fall and winter of 2014, I published two posts on this blog lamenting  how we talk, argue, and litigate about abortion. Those posts generated as much attention as any I have written over the last six years in terms of substantive feedback. My main sentiment was that " we don’t need to live in a zero-sum world when it comes to abortion and that name calling and misleading labels do not advance the debate or the politics surrounding the debate. Although compromise and civility might be hard to achieve, I argued we should at least try to do better (on both sides)." I also cautiously suggested that compromise would be more likely if the Supreme Court returned this issue to the political process. This term, of course, the Court decided June Medical , which effectively held that lower courts must determine whether a regulation of abortion places an undue burden or substantial obstacle in the way of women seeking abortions without the court addressing the la

Veganism, Year Twelve: The Pandemic, Animal Slaughter, and Economic Transition

by Neil H. Buchanan There is nothing like a global pandemic to get people thinking about ways in which the world can make very big changes in very short periods of time.  That which seemed simply impossible -- animals walking through empty city streets , air quality radically improving in mere weeks ( saving tens of thousands of lives in China alone) -- becomes not only possible but banal.  What else might be possible? Today is the twelfth anniversary of my becoming a vegan.  Each summer, I write one or more veganniversary columns: 2019 (plus followup ), 2018 , 2017 , 2016 , 2015 , 2014 , 2013 , 2012 , 2011 , 2010 , 2009 , and the original announcement in 2008 (plus followup ).  Because my co- Dorf on Law writers Professors Sherry Colb and Michael Dorf have written extensively and deeply on this topic (including their wonderful 2016 book ), I have tended to approach the topic from one or both of two angles: offering non-expert (even pedestrian) observations of how vegans are pe

Trump Admin Legal Team's Defense Of Portland Goon Squads Mirrors Prior Pretextual Arguments

by Michael C. Dorf Running for the Republican nomination for President in December 2015, candidate Donald Trump called  for a "total and complete shutdown of Muslims entering the United States." Two and a half years later, a 5-4 US Supreme Court upheld travel restrictions on persons entering the US chiefly from Muslim-majority countries, even though, as Justice Sotomayor noted in dissent, there was overwhelming evidence that the version of the Travel Ban before the Court in 2018 was the lineal descendant of, and would not have existed but for, Trump's extensive and blatant anti-Muslim animus. Nonetheless, Chief Justice Roberts, writing for the majority, deemed that background irrelevant in light of the sanitizing efforts of Trump's minions: "the issue before us is not whether to denounce [Trump's] statements," the Chief Justice said in the course of accepting a clearly pretextual national security justification for the supposedly sanitized Travel Ban. T

Will Liberal Justices Pay A Price For Signing Onto Justice Gorsuch's Textualist Opinions?

by Michael C. Dorf Last week, Prof Segall pushed back against an emerging narrative among many SCOTUS watchers. According to the rapidly-becoming conventional wisdom, in the most recent Term, Chief Justice Roberts and Justice Gorsuch demonstrated that they are principled jurists who follow the law and their interpretive methodology where it leads them. The main pieces of evidence for this narrative are the SCOTUS decisions this term in the LGBT Title VII case (written by Gorsuch and joined by Roberts and the liberals), the Louisiana abortion case (written by Roberts and joined by the liberals), the DACA case (same), and the Trump financial records cases (written by Roberts and including Justices Gorsuch, Kavanaugh, and in one respect all the Justices). We can also point to the Oklahoma case involving the Creek Nation (written by Gorsuch and joined by the liberals), about which more below. That's a pretty impressive list, right? So what is Prof Segall's objection? He makes thre

Trump's Not-So-Proto Fascism is Still Not Proof of Political Genius (Evil or Otherwise)

by Neil H. Buchanan Now that Donald Trump has decided that he wants to expand his terrifying use of unidentified shock troops in American cities beyond Portland -- a tactic that Professor Dorf has brilliantly (and accurately) likened to Vladimir Putin's invasion of Crimea -- people are finally feeling some sense of growing alarm about the lawless intent of this president and his enablers.  One hopes that it is not too late. Even in the midst of existential crises like this one, it continues to surprise me how important our word choices are.  What we call things frames how we think about things (of course), and it is no mistake that demagogues and autocrats abuse language to minimize or maximize matters to serve their own purposes.  Hence, Trump's dismissal of increases in reported coronavirus cases as merely "the sniffles" -- as if hospitals (already stretched to capacity) say, "Oh, a positive case with trivial symptoms; looks like we'd better expedite

Portland is the New Crimea: Trump's Little Green Men

by Michael C. Dorf The Trump/Barr administration has been deploying federal law enforcement officers in Portland without approval of local or Oregon state authorities, without clearly identifying who they are, and without a clear law enforcement mandate. In each of these respects, the deployment may well be illegal, as Prof. Steve Vladeck explained on Friday. Further, Portland Mayor Ted Wheeler believe s--with good reason --that the federal presence is causing rather than quelling violence. Here I will focus on the striking similarity between what Trump and Barr are now doing in Portland and the Russian invasion of Crimea (and then eastern Ukraine).

A Different View About Chief Justice Roberts and this Year's Term: The Return of O'Connorism

By Eric Segall As legal scholars and pundits publish their year end op-eds and essays about the Court's 2019-2020 term, one clear trend emerges. There is almost universal acclaim for how Chief Justice John Roberts steered the Court into the political center and showed that, for at least this term, the Court was above politics. Luminaries such as Yale Law Professor Akhil Amar and Harvard's Noah Feldman wrote pieces in the New York Times and Bloomberg respectively, suggesting, in the words of Amar, that "The Roberts Court is nothing like America. In a polarized nation, the Court continues to defy partisanship." Similarly, Feldman wrote that " Chief Justice John Roberts revealed himself to be (or to have become) a genuine, judicial restraint Burkean conservative who is prepared to uphold liberal precedents and to keep the Trump administration subordinate to the rule of law...  [The Term] showed that the justices aren’t robots, driven by partisan or ideological age

Team Names, Merch, and Making Money: Bigotry Trumps Capitalism

by Neil H. Buchanan Question: When do money-hungry businessmen -- men who tout the idea that there is nothing more important than the almighty dollar, not only as a measure of business success but as evidence of personal value (and even virtue) -- decide to leave dollars on the proverbial table? Answer: When they would rather stoke bigotry and culture wars than make money. Surprisingly often, the cheerleaders for unbridled capitalism firmly embrace squishy things like "culture," even though they mock every other attempt to say that life is about more than money.  And it is almost invariably true that the cultural commitments of these men (and very occasionally women) are all about reinforcing racial, gender, and class hierarchies.  What fun is it to make money unless you can spend it to keep your inferiors down?  There is a lot going on here.

SCOTUS News Flash: Judges Trust Other Judges More Than They Trust Legislators

by Michael C. Dorf Because of my father's sudden illness and death last week, I only got around to reading the Trump financial records cases and the excellent commentaries on them by Profs Buchanan ( here and here ) and Segall ( here ) yesterday, when I also produced edited versions of the cases for the supplement to the constitutional law casebook I co-edit with Profs Richard Fallon and Fred Schauer. (Prof Jesse Choper is also listed as a co-editor to reflect his enormous contributions to earlier editions.) I confess that I have not yet had a chance to read others' reactions to the cases, and so I apologize if my take repeats what others have already said. What is my take? Simply that in reading the two cases together, I was struck by the different way in which the Court treated judges from the way in which it treated legislators. In Trump v. Vance , the Court rejects Trump's argument for absolute immunity against a grand jury subpoena and even for a requirement of heig

Were the Trump Tax Cases More Important Than I Thought? Not Really

by Neil H. Buchanan Last week, the U.S. Supreme Court issued a pair of decisions in what were somewhat misleadingly known as the "Trump tax cases."  I then wrote a column here on Dorf on Law under an oh-so-clever title -- " The Supreme Court ... yawn ... Rules on Presidential Tax Returns " -- in which I argued that there was not really much of interest in those cases, at least not in the sense that we usually think of Supreme Court cases as being important. That is, I argued that unlike the DACA ("Dreamers") case this term, or Obergefell (same-sex marriage) a few years ago, the immediate import of the tax cases was essentially nothing.  Even if the Court had ruled much more forcefully against Trump by ordering the immediate transfer of his tax and financial records to Congress and the Manhattan DA, it is not at all obvious that the world would have been meaningfully better or worse for either Trump or his opponents.  In fact, I argued that Democrats

In Memory of Stanley Dorf (1931-2020)

By  Laura Dorf Queller &  Michael C. Dorf Stanley Allen Dorf was born in 1931 on the Lower East Side to our grandparents Irving and Sally Dorf. It was the Great Depression, but fortunately for dad and his brother Bill, born four years later, Grandpa had a secure job with the Post Office. They were hardly well-to-do, but they always had enough to eat, and good too, as Grandma Sally was a wonderful cook.   No doubt to Grandma’s dismay, dad weighed a whopping twelve pounds at birth and thus needed some assistance entering the world. The obstetrician yanked newborn Stanley’s right arm, permanently damaging it. For the rest of his life, he could not use his dominant hand for tasks requiring twisting motions, such as throwing a ball, playing a musical instrument, or even opening a door. Later, he had what he described as a “mild” case of polio, which left other scars and kept him in quarantine for months—preparation for what we have all been experiencing lately. Dad accepted these limita

The Court's Term: Who Won and Who Lost

By Eric Segall In the words of my friend Professor Josh Blackman (in an email), "what a term!" For one thing, for the first time the American people listened live to some of the Supreme Court's oral arguments. That it took a worldwide pandemic to achieve that result should not go unmentioned. Whether the Court go back to its ancient ways next year is anyone's guess, but sadly it still feels like live streaming the Justices' open and public hearings is at least two pandemics away. There were at least two obvious winners this term. Gays, lesbians, and transgender persons will finally get legal protection  when they are discriminated against because of their sex, and that is an overwhelmingly positive development. It is a little sad that it took the Supreme Court to make that call when our cowardly Congress should have made explicit those protections long ago. Many people suggested these cases were a win for Justice Gorsuch -style "textualism," while

Reassessing America's Founders is Completely Patriotic

by Neil H. Buchanan U.S. Senator Tammy Duckworth, an Illinois Democrat, has upset some people lately.  She was asked whether statues of George Washington, Thomas Jefferson, and so on should be brought down, and she replied that it was legitimate to have a "national dialogue" about that question.  She did not say that she agreed with those who would change the national deification of those (slave-owning) men, only that discussing it is legitimate. Naturally, she was quickly excoriated by those on the right who are constantly looking for wedge issues, including (of course) Donald Trump.  Duckworth responded with a pointed and moving op-ed in The New York Times , in which she stated emphatically: "I don’t want George Washington’s statue to be pulled down any more than I want the Purple Heart that he established to be ripped off my chest. I never said that I did. "But while I would risk my own safety to protect a statue of his from harm, I’ll fight to my

The Supreme Court ... yawn ... Rules on Presidential Tax Returns

by Neil H. Buchanan Imagine that the Supreme Court had ruled today that Donald Trump must immediately provide all of his tax returns from the past x years to both the Manhattan District Attorney and to the House Ways and Means Committee.  That would have seemed like a big deal, much bigger than the Court's actual rulings (see below), but would it have mattered? As I worked through the possible outcomes before today's decisions were released , I realized that these were the highest profile cases with the lowest immediate stakes that anyone could imagine.  The mismatch is striking. We take for granted that the Court's decisions affect the parties in a material way and affect other parties substantially (and often immediately).  Same-sex marriage is declared a right protected by the Constitution, and thousands of people celebrate and head to the county courthouse.  The Court says that Trump's attempt to end the Deferred Action for Childhood Arrivals program was inval

The Roberts Court: We are All Living Constitutionalists Now

By Eric Segall "There are really only two ways to interpret the Constitution-either try to discern the best we can what the framers intended, or make it up." Justice Clarence Thomas During the 2016 Presidential election campaign, then-candidate Donald Trump repeatedly promised to only appoint originalist Justices like the late Antonin Scalia to the Supreme Court. His first nominee, then-Judge Neil Gorsuch, testified at his confirmation hearing that he "was happy to be called an originalist." Trump's second nominee, then-Judge Brett Kavanaugh, must have thought he was being clever by quoting Justice Elena Kagan who said at her confirmation hearing that "we are all originalists." Kavanaugh, however, conveniently left out the beginning of Kagan's quote which went as follows: "Sometimes they laid down very specific rules. Sometimes they laid down broad principles. Either way we apply what they tried to do. In that way, we are all originalis

Writing and Rewriting History, from Columbus to Jefferson and Beyond

by Neil H. Buchanan Donald Trump has now decided that he will stand up for Confederate generals and symbols, accusing everyone else of being eager to erase history.  His cult has, of course, decided that any attempt to change the way history is presented -- actually, that any progressive change at all -- is a horrific act of leftist fascism.  This is all deranged, and it should continue to be treated with derision. For the sane world, however, there are still a lot of interesting questions to confront, and we must at least try to begin to think through possible answers.  Last week, I joined the side of those who argue that nothing should be off the table, which means that the answer to Trump's slippery slope-style question -- If Robert E. Lee goes, will Washington and Jefferson be next? -- might be yes.  Might be, although the arguments can be complicated and nuanced (which are not, of course, words that described Trumpian thinking). Here, I want to ask what it means to &qu

SCOTUS Abortion GVR's Suggest June Medical Narrowed The Right

by Michael C. Dorf On Thursday , the Supreme Court g ranted certiorari, v acated the appeals court decisions, and r emanded for reconsideration (GVR'd in SCOTUS lingo) in light of June Medical Services v. Russo  in two Seventh Circuit cases. Prima facie , that's odd. In June Medical and both of the GVR'd cases, the plaintiffs challenging abortion regulations won. Ordinarily, the Court GVRs when the result of a new SCOTUS case is contrary to the result of the GVR'd case. To GVR is to say: "Hey, the result you reached looks inconsistent with the result we just reached in a similar case, but we don't want to reverse; maybe there's an important distinction; you figure it out in the first instance." So here the question arises: what is there about the new SCOTUS case that might be thought to narrow abortion rights? As I wrote here a week ago , four justices in June Medical adhered to the view they had expressed for a majority (when Justice Kennedy was still

Happy (?) Independence Day

by Neil H. Buchanan Today, Friday the 3rd of July, is designated " Independence Day observed" on my calendar. We at Dorf on Law are hardly giddy optimists, but we do hope that next year's celebration of this country's declaration of independence will occur in a time with more reasons to feel confident about the future than we can see today. In any event, we wish all of our readers health and happiness,

Biden's Statues and Names Compromise is 2020's Version of Civil Unions

by Neil H. Buchanan I never thought that I would see NASCAR ban the Confederate flag from its events.  Ever.  I could not imagine Mississippi getting rid of the that flag's inclusion in its state flag.  Ever.  I never thought that entire high school sports teams would take a knee during the national anthem, or Mitt Romney would join a civil rights march against systemic racism, or any number of other politicians would embrace the phrase "Black Lives Matter."  Ever.  Ever.  Ever. Even so, we often see things happen suddenly that had once seemed unthinkable.  I have noted at various times, for example, that the public's attitude about cigarette smoking once seemed implacable: Smoking was viewed as an individual's right, goddammit!  But in very short order, not only did smoking become "uncool" but New York City's smoking ban -- even in bars and restaurants -- was adopted in cities across the country and the world.  Paris without people smoking arrog

Some Puzzles in Espinoza v. Montana Dept of Revenue

by Michael C. Dorf The big news in yesterday's SCOTUS ruling in Espinoza v. Montana Dep't of Revenue  is that there is very little remaining "play in the joints" between the First Amendment's Free Exercise and Establishment Clauses. That's a quote from the two most recent previous Chief Justices: Chief Justice Burger writing for the Court in Walz v. Tax Comm'r  (1970) and Chief Justice Rehnquist writing for the Court  Locke v. Davey . Play in the joints is a federalism-friendly idea. It allows that some states have some discretion in deciding how to treat religion and religious institutions. The Free Exercise Clause limits the ability of states to act on hostility towards religion, while the Establishment Clause limits their ability to favor religion, but there is a range of permissible policies in between. Thus, in Locke , the Court allowed the State of Washington to provide scholarships to postsecondary students so long as they did not use them to study