Showing posts from June, 2023

Unanswered Questions in the Web Designer Case

During the oral argument in 303 Creative v. Elenis , Justice Jackson posed a hypothetical example for the plaintiffs' lawyer: would a shopping mall Santa who wishes to create only nostalgic images have a free speech right to refuse to take pictures with Black children, notwithstanding a public accommodations law? Later in the argument, Justice Alito countered with a hypothetical Black mall Santa who wished to avoid taking pictures with a child dressed in a Klan robe. The dueling examples underscored that even though plaintiff Lorie Smith objects to the application of Colorado's anti-discrimination law to require her to provide her wedding website design services to same-sex couples, the principle for which she argued would provide a free speech exception to all public accommodations laws, including those forbidding race discrimination. In her dissent from today's ruling for the plaintiffs in 303 Creative , Justice Sotomayor made just that point. She wrote: A website designe

About that Loophole: Good Luck, Admissions Officers

Near the end of the majority opinion of Chief Justice Roberts in Students for Fair Admissions v. President and Fellows of Harvard College , we find the following potential loophole: nothing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise. But, despite the dissent’s assertion to the contrary, universities may not simply establish through application essays or other means the regime we hold unlawful today. Fair enough. Colleges and universities cannot use such essays as a cover for programs they have hitherto been running. In other words, such an essay would need to be open to applicants of all races and backgrounds. Curious about what that might entail, I gave chatGPT the following instructions: Write a 300-word essay in the voice of a white high school senior from Greenwich, Connecticut. His name is Charles "Chug" Maxwell IV.

Precedents out of Context in the Harvard/UNC Affirmative Action Ruling

On the last page of his 58-page concurrence in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College , Justice Thomas writes: "The Court’s opinion rightly makes clear that Grutter [ v. Bollinger ]  is, for all intents and purposes, overruled." Clear ? Hardly. Certainly not explicit . The majority opinion by Chief Justice Roberts certainly does not expressly overrule Grutter or any of the Court's other affirmative action decisions. Indeed, Justice Kavanaugh, who, like Justice Thomas, signs onto the majority opinion in full, states that "the Court’s opinion today is consistent with and follows from the Court’s equal protection precedents," including those involving affirmative action. Who's right? As a practical matter, Justice Thomas is. Today's decision ends race-based affirmative action in higher education (although there are loopholes that can and likely will be exploited). But Justice Kavanaugh captures the spirit of the majo

Would Delay in the Trump Criminal Cases Truly Be a Bad Thing?

Today is a break between hand-downs in the Supreme Court's annual decision-palooza, with more rulings to come tomorrow and possibly on Friday.  With this respite upon us, I will turn my gaze from law to politics -- or, more accurately, from discussing decisions by a Court that is desperately clinging to decreasingly plausible claims of being apolitical to analysis of nakedly partisan electoral politics.  It is almost a relief to stop indulging certain people's pretenses of impartiality. Presidential politics is, however, now openly infecting the public's perception of the criminal justice system, because Donald Trump and his cult of personality (including the House Republicans who are, among other things, discussing expunging his impeachments) have decided to treat all criminal cases as political -- whether indictments of Trump in federal court or in courts in blue states or blue cities, or the criminal treatment of Hunter Biden and Hillary Clinton.  More than even the mos

Trump is the Biggest Loser in Moore v. Harper

Donald Trump wasn't a party or an amicus  in Moore v. Harper , but he, more than anyone, is the biggest loser in the case. Although Moore concerned partisan gerrymandering of legislative districts in North Carolina, the Court's merits decision rejecting the independent state legislature (ISL) theory cuts off one of the most likely paths that Trump had open to him to retaking the White House if he secures the Republican nomination but loses the general election. After some background material, in today's essay, I'll explain why. To briefly review and summarize, Article I, Section 4 of the Constitution provides: "The times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof," subject to congressional modifications. ISL posits that this provision grants the power to draw districts to state legislatures --independent of state high court review. In a slightly narrower version advanc

The Latest Chapter in State Lawsuits Versus the Federal Government: United States v. Texas

In the 1990 case of Burnham v. Superior Court , the Supreme Court unanimously ruled that a non-resident defendant may be subject to personal jurisdiction in a state in virtue of having been served with process while physically present within the state, even apart from any other contacts the defendant has or doesn't have with the forum state. Despite the agreement about the outcome, the Court divided badly and surprisingly contentiously on the rationale. Justice Stevens thus wrote a pithy concurrence in the judgment that included, in a footnote, this lovely piece of snark: "Perhaps the adage about hard cases making bad law should be revised to cover easy cases." That brings us to Friday's ruling in United States v. Texas . The Court was nearly unanimous in holding that the state of Texas lacked Article III standing to sue the federal government demanding that it arrest and remove more undocumented immigrants, despite accepting (for purposes of the case) the claims by t

Ron DeSantis is the ChatGPT to Donald Trump’s Lizard Brain

by Neil H. Buchanan   With the 2024 Republican presidential field expanding daily (although laughably ), it is tempting to fall into the usual media framing of every election in the horse-race mode.  What do the latest, meaningless polls say?  Who is pulling ahead by a nose?  Who is closing some perceived gap?  Dreary and predictable, such analyses have the half-life of Polonium-210 , and they only remind us that people like Michelle Bachmann and Bruce Babbitt have had "moments" in early presidential fields. What is interesting at this stage, however, is the Trump/DeSantis dynamic.  Even though there have been plenty of times in which the top two candidates early in an election cycle have both gone down to defeat, the similarities and differences between those two candidates tell us a lot about the state of American politics and punditry, no matter who succeeds or fails. What can one say about Florida's current governor that has not already been said?  He had a big splash

En Passant Suspension Clause Originalism in Jones v. Hendrix

In Jones v. Hendrix , Justice Thomas wrote for a 6-3 Court that divided on ideological lines. The case is complicated, but it's important for what it says about the constitutional status of habeas corpus. Accordingly, I ask readers to bear with me as I set the table for a discussion of what I regard as the key point. Jones posed the question of how to interpret  28 U.S.C. § 2255  -- the statutory provision that governs post-conviction review for federal prisoners. Section 2255 operates as a limit on 28 U.S.C § 2241 , which authorizes federal courts to grant writs of habeas corpus. Like the parallel provision limiting habeas for state prisoners ( 28 U.S.C. § 2254 ), Section 2255 as amended by the Orwellian-titled Antiterrorism and Effective Death Penalty Act (AEDPA) imposes various procedural and substantive limits on the availability of habeas. One such limit is contained in subsection (h) and generally forbids someone who has already filed at least one § 2255 petition from filing

New Look, New Security, Same Content

Hey DoL readers: For a while now I've been meaning to transition to secure settings (https rather than http) for this blog. It was more complicated than it ought to have been--and not simply because I'm a lawyer rather than an IT guy. But yesterday I powered through, so now you'll see the little lock icon next to the URL, rather than the ominous "not secure." As long as I was updating security, I updated the look of the blog. However, rest assured (or be annoyed!) that nothing changes with respect to content, frequency, etc. Okay, that's it for now. I'll likely be back later today with commentary on one or more cases SCOTUS hands down.

Justice Thomas, Originalism, and Truly Unconscionable Hypocrisy

 By Eric Segall On Monday, Mike wrote a post about last Friday's opinion allowing the United States government to dismiss a qui tam suit even after it allowed a plaintiff to bring the case. Justice Kagan laid out the issues in the case and the answer: The False Claims Act imposes civil liability on any person who presents false or fraudulent claims for payment to the Federal Government. The statute is unusual in authorizing private parties— known as relators—to sue on the Government’s behalf. When a relator files a complaint, the Government gets an initial opportunity to intervene in the case. If the Government does so, it takes the lead role. If not, that responsibility falls to the relator, the only person then pressing the suit. But even when that is so, the Government retains certain rights, including the right to intervene later upon a showing of good cause. The questions presented here concern the Government’s ability to dismiss an FCA suit over a relator’s objection. Ever

Juneteenth Versus the Plausible Alternatives

by Michael C. Dorf With SCOTUS issuing its opinions on Thursdays and Fridays for the last couple of weeks, I ended up writing a Verdict  column and blog post for yesterday that were driven by the news cycle. Hence, I missed the opportunity to observe that yesterday was Juneteenth. It was. I apologize for the failure to say something about the holiday yesterday and will accordingly try to remedy the omission today. My ostensible topic for this essay: Why June 19 rather than some other day? To be clear, that's only a framing device. The reason to recognize Juneteenth is obvious. That's the day that most African Americans whose ancestors were enslaved have traditionally celebrated the end of slavery. Although the abolition of slavery was and should be important to all Americans, it would be perverse for white America--or me, a white guy--to try to dictate some other day. Hence, I'm not in any sense proposing a different day. Nor am I asking a historical question. June 19, 18

The Trumpists' Cynical Use of the Unitary Executive Theory

  by Michael C. Dorf My latest Verdict column examines the all-but-endorsement of the unitary executive theory by Justices Thomas, Kavanaugh, and Barrett in Friday's SCOTUS decision in  United States ex rel Polansky v. Executive Health Resources . As I explain in the column, the case concerns the scope of the government's power to dismiss a False Claims Act lawsuit that is originally brought by a whistleblower on behalf of the government when (as in Polansky ) the government decides that pursuing the claim is not worth its while. What interests me is the dissent by Justice Thomas--joined in this respect by Kavanaugh and Barrett in a concurrence--contending that in a future case the Court should consider whether such so-called qui tam suits are consistent with Article II. As I note in the column, Thomas leaves open the theoretical possibility that he would vote to uphold qui tam actions, but he pretty strongly tilts in the other direction. He does so by relying on the unitary e

Shared Reality, Political Volatility, and the Genius of Joan Didion

by Neil H. Buchanan Writing today's column is a pleasure.  Even though it is directly relevant to our current political disaster, and even though the analysis does not lead to a reduction in pessimism, it in large part concerns Joan Didion .  Didion was arguably the greatest essayist of the last century, which means that writing about her and her work cannot help but improve one's day. I write about Didion after having read a wonderful guest op-ed in The New York Times that ran last week: " Joan Didion, the Death of R.F.K. and the Solution to a Decades-Old Mystery ."  Written by a scholar named Timothy Denevi, who is identified in The Times as "an associate professor of creative nonfiction at George Mason University," the essay is fascinating and insightful.  I would even be tempted to say that readers who had to choose between reading Denevi's piece or this column should click over and never look back, which is saying quite a lot in light of my ego. 

Federalism and Pop Psychology in Two SCOTUS Cases Today Involving Native Americans

  by Michael C. Dorf The Supreme Court decided two cases today that involve the relation between the federal government and American Indian tribes. (SCOTUS uses the term "Indian," which is  generally deemed acceptable . With apologies to those with different preferences, I'll do the same.) In Lac du Flambeau Band of Lake Superior Chippewa Indians v. Coughlin , the Court, in an opinion by Justice Jackson, ruled 8-1 that the bankruptcy code abrogates the sovereign immunity of Indian tribes. In Haaland v. Brackeen , the Court, in an opinion by Justice Barrett, ruled 7-2 that the Indian Child Welfare Act (ICWA) falls within the enumerated powers of Congress, does not violate the anti-commandeering principles the Court has previously articulated, and cannot be challenged by the current parties with respect to equal protection due to issues of standing. The big news here is probably the lack of news in Brackeen . As I wrote after the oral argument back in November, the Justice

Florida: Where Trump's Uprising Went to Die

by Neil H. Buchanan Happy Flag Day!  Not that that has anything to do with the big story of the day, but there is also a new Buchanan-Dorf column available today on Verdict that is similarly irrelevant to the current news cycle.  In " Joe Versus the Volcano: How Biden’s Debt Ceiling Deal Could Engulf the World Next Time ," we take our final (for now) swing at the topic that dominated the news until only ten days ago, explaining how the debt ceiling's current hibernation could end badly in early 2025. There is no reason to go into that column's arguments in any more detail here, but there is a linguistic connection between that column and today's news.  Specifically, Republican defenders of Donald Trump are again playing fast and loose with the meanings of words as they try to dismiss and minimize the seriousness of what is going on, relying in part on the kind of wordplay that those who turned the debt ceiling into a political weapon of mass destruction have use

What Are Trump's GOP Rivals for the Nomination Hoping to Accomplish?

  by Michael C. Dorf With the notable exceptions of Chris Christie, Asa Hutchinson, and (to a lesser extent) Mike Pence, the leading candidates for the 2024 Republican Presidential nomination initially reacted to Donald Trump's recent indictment for willful retention of national defense information, obstruction of justice, and other crimes chiefly by accusing the Biden administration of unfairly weaponizing the Department of Justice against a political rival. Christie, Hutchinson, and (again to a lesser extent) Pence are running as traditional Republicans aiming to turn the party away from Trumpism. However, Christie and Hutchinson each poll around one percent of GOP primary voters. Pence fares a bit better at around five percent , but it's nearly impossible to imagine Republicans nominating someone whom their core base view as a traitor worth hanging. I'll return below to their campaigns, but for now let's focus on the candidates who are trying to secure the nominati

Trump's Indictment, National Security, and Classified Documents: This is a Very Big Deal

By Eric Segall It is a monumentally important and in many ways disturbing thing for one national political party to indict a former President of a different political party. That's not exactly what's happening in the Trump documents case, of course. Attorney General Merrick Garland sought the appointment of Jack Smith (a political independent) as special counsel precisely to avoid charges of partisanship. Even so, such charges are inevitable and not entirely unwarranted. Although functionally independent in most respects, Smith is ultimately working within the Department of Justice. Thus, no matter how persuasive the case, there will be charges of excessive partisanship (especially when the former POTUS is running again), and threats of retaliation by the party out of power. That is maybe why Trump is the first former President to be indicted for federal crimes.  However, no person in America should be above the law, including a former President, and the 30-plus count indictmen

The Right to Arm Bears: Unusual Cameras and the Fourth Amendment

by Matthew Tokson A lawsuit recently filed in federal court alleges that Connecticut environmental enforcement officers strapped a camera around the neck of a bear who was known to frequent the plaintiffs’ property. The officers hoped to obtain evidence that the property owners, Mark and Carol Brault, were violating a local law against feeding wild bears. The camera-wearing bear traveled to within 200 yards of the Braults' residence, transmitting images of their property to the officers. The Braults assert that this violated their Fourth Amendment rights.  In addition to being ripe for puns , the case raises several interesting Fourth Amendment and property law issues. Bear with me as I explore the complex questions raised by this unusual scenario.

How Competent Do Republicans Have to Be to Turn the US Into a One-Party State?

by Neil H. Buchanan I am not above reveling in schadenfreude .  Indeed, one of the few pleasures from observing US politics in 2023 has been to watch Republicans -- especially those in the US House, who are the proverbial dog that caught the car -- struggle to carry out even the most basic acts of governing.  They could not get their act together even to elect their own Speaker on the first day of the congressional term, having had weeks before that date to get themselves up and running. More than a dozen ballots of ritual humiliation later -- achieved only after an endless number of ridiculous concessions to their most out-there members, along with an unknowable number of private side deals -- they installed the hapless Kevin McCarthy to become what should henceforth be known as the Follower of the House.  As only one of McCarthy's many problems, he barely speaks English (see Dana Milbank's December 2022 Washington Post piece: " Is Kevin McCarthy okay? ") even thou

Free Speech and Trademarks: From Poop-Themed Dog Toys to Anti-Trump-Themed T-Shirts

  by Michael C. Dorf On Monday the Supreme Court granted certiorari in the amusing little case of  Vidal v. Elster . Steve Elster sought to register the trademark "TRUMP TOO SMALL" on the t-shirts (and similar items) he sells. An examiner for the Patent and Trademark Office (PTO) rejected the mark on the ground that it uses the name "of a particular living individual" without his consent, in violation of 15 U.S.C. § 1052 (c).  The Trademark Trial and Appeal Board affirmed that rejection, also rejecting Elster's First Amendment argument. However, the US Court of Appeals for the Federal Circuit reversed . In reliance on the SCOTUS decisions in Matal v. Tam and  Iancu v. Brunetti , the court held that, as applied to TRUMP TOO SMALL, Section 1052(c) is unconstitutional content discrimination. Throwing into the mix the currently pending case of Jack Daniel's v. VIP Products , the Elster case will mean that by roughly this time next year, the Supreme Court will h

A Rare Case of Left-Progressives Doing What Centrists Accuse them of Doing All the Time

by Neil H. Buchanan Frequent readers of Dorf on Law will surely have noticed that I have a pet peeve regarding bothsidesism .  There is a particular sub-variant of that phenomenon that I will now dub "bothfringesism," which is where the mainstream press, along with center-right through center-left Democrats, says that the progressive fringe on the left is merely a mirror image of the Gaetz/Greene/Massie/whoever MAGA fringe on the right.  "Oh look at those Trumpist crazies!  But of course, the Democrats have 'the Squad,' so there's that." This is the ordinary, dreary stuff of cable news chat shows, repeating themes exemplified by an MSNBC segment yesterday in which conservative radio host (and NeverTrumper) Charlie Sykes said: " There is illiberalism on the left; DeSantis represents it on the right ."  That tired claim about widespread leftist illiberalism is and always has been utter, laughable nonsense. In the realm of elected politicians,