Dorf on Law

 By Eric Segall There are four Supreme Court justices who self-identify as strong originalists (Thomas, Barrett, Gorsuch, and Kavanaugh), and one who is a hot and cold originalist (Alito). Inheriting their perspectives from the work of the late Justice Scalia, they all believe the correct method of originalism has much more to do with the original public meaning of the constitutional text than the subjective intentions of the drafters and ratifiers of that text (though evidence of intent is surely relevant to public meaning).  In the landmark Bruen   gun case from last year, writing for all of the conservatives, Thomas strongly emphasized the role of history in constitutional interpretation and rejected the idea that judges should “make difficult empirical judgments” about “the costs and benefits" of legislation. Although Bruen   involved only the Second Amendment, the justices argued that this "all history, no policy" approach applied to other constitutional provisions

Thanks to DoL readers while we (mostly) took the last three weeks off. We will be back providing new content roughly daily beginning on Monday of next week, with Prof Segall kicking things off with a powerful critique of the Supreme Court's opportunistic and inconsistent approach to valuing (its separately problematic view of) history as the sine qua non of constitutional interpretation. In the meantime, I'll take this opportunity to provide some links and updates: (1) One week from today, on August 3, 2023, I'll be a panelist (on every panel, all day long) at the 25th Annual Supreme Court Review, sponsored by the Practicing Law Institute . I've been doing these panels every year for the last quarter century--since co-organizers Erwin Chemerinsky and Marty Schwartz inaugurated the program. Registration for the in-person session (in midtown Manhattan) or online isn't free, although tuition waivers are available for some categories of lawyers. It's a great way to

I have a new Verdict column up today. In it, I explain that, thanks to AI, I'm going to in-class proctored closed-network exams. I also explain that for now I'll muddle through with supervising student papers for my seminar. In the column, I note that I asked ChatGPT to create a list of ten paper topics for the seminar I'll be teaching in the fall. It did reasonably well as a starter but really gave only topics, not theses. The seminar is called "The Constitution's Political Economy." Here's the description I wrote for the law school's online course catalogue: Since the so-called New Deal Settlement of the late 1930s, courts have largely adhered to the view expressed by Justice Oliver Wendell Holmes, Jr. in his dissent in Lochner v. New York , 198 U.S. 45, 75 (1905), that the Constitution does not “embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the State or of laissez faire.” Nonetheless, issues

[Note to readers: As Professor Dorf announced yesterday, we at Dorf on Law are taking a bit of a summer hiatus.  Although we will possibly post new content over the next two or three weeks, we will otherwise post either nothing or "classic" columns.  And what better classic for a(nother) hot, steamy Gainesville day than my post from April 2019 announcing my move to the University of Florida?!  Re-reading this column in light of the ensuing four years of happenings here was, to say the least, amusing.  I hope that others are similarly entertained.]   I am very pleased to announce that I have accepted an offer to join the faculty at the University of Florida Levin College of Law .  Specifically, my title will be Professor of Law and James J. Freeland Eminent Scholar Chair in Taxation.  Quite a mouthful! As Dorf on Law is mostly devoted to legal, policy, economic, and political analyses, this type of announcement is out of our norm.  But given that this blog's authors

For the next two and a half weeks or so, my co-bloggers and I will mostly be taking a break -- working on other projects, attending to our respective personal and family matters, and recovering from a(nother) brutal Supreme Court Term. One or more of us might post "classics" during that period or, depending on availability and the news cycle, might even write something new. Or on any given few days, we might not put anything up here. So don't be concerned if you hit "refresh" and you don't see any new content. We'll be back soon enough with our characteristic mix of snark, insight, and foolishness.

I'll be participating in two upcoming panels reviewing the recently completed SCOTUS Term. On Wednesday, July 19, at 3 pm Eastern time, University of Illinois Law Dean and Professor Vikram Amar and I will discuss the Term's big cases in a one-hour webinar hosted by Justia (publisher of Verdict , for which Dean Amar and I are both columnists). You can find full info here . To register at the main site, you need to be a Justia member. Attorneys can become Justia members (and derive various networking benefits) for free. If you're not an attorney or are one but don't want to register with Justia, you can watch the webinar anyway (also for free) by clicking here . (That will launch a Zoom webinar window at the appointed date and time.) On August 3 and for the 25th consecutive year, I'll be participating in an all-day review of the Supreme Court Term, courtesy of the Practicing Law Institute . As always, the day's festivities are organized by Berkeley Law Dean Erwin

by Neil H. Buchanan Even by the unsettled standards of 2023, the past week has been especially unusual for a certain governor of the third-largest state in the United States.  Ron DeSantis has settled into a very-distant second spot in the Republican presidential preference polls, and he seems to have become increasingly determined to make news for the sake of making news.  Provocation for its own sake. The move that grabbed headlines this week was the simply weird video that his campaign released attacking Donald Trump's history of being relatively tolerant -- in some cases even solicitous -- of the LGBTQ+ community.  Trump is apparently "woke"!  Rather than linking to that video, I will provide here a link to Transportation Secretary Pete Buttigieg's comments about the DeSantis video shortly after it was released.  That was the high road. MSNBC's Chris Hayes -- who is briefly shown in the DeSantis video criticizing the governor, which of course is a badge of r

For almost as long as Twitter has existed, I've been Tweeting out occasional random snark but mostly links to: blog posts by me and my co-bloggers; my Verdict columns; and some of my scholarship. Like many other people, I've been looking for an alternative to Twitter since Elon Musk purchased it last year. I had long been using and continue to use a Facebook fan page as well as my personal Facebook page to cross-post my tweets. Late last year, I started doing the same via  Post . I considered creating a Mastodon account but decided instead to wait to see whether there would be a mass migration there. Last week, a friend sent me a link to try  Bluesky , so I've opened an account there too (my handle there is @dorfonlaw.bsky.social). And now that Meta has launched Threads, I imagine that I'll start cross-posting there as well. Will any of these platforms supplant Twitter? One would think that Threads has the best chance of doing so. After all, users log in using their e

In an op-ed in The Boston Globe  today, I consider how during the Term that just concluded Chief Justice John Roberts seemed to wrestle control of the Supreme Court away from its most reactionary members--Justices Clarence Thomas and Samuel Alito. Perhaps talk of the "Thomas Court" was premature. Even if so, however, as I argue in the op-ed, the "Roberts Court" isn't exactly the right way to describe the current Court either. Denoting the Supreme Court in a particular era by the name of the Chief Justice, if more than an empty formalism, typically signifies some distinctive vision of the Court and/or the law. In the op-ed, I give the examples of Chief Justices John Marshall in the early Republic and Earl Warren in the 1950s and 1960s. The current Court has no distinctive vision apart from the agenda of the Republican Party. Thus, I conclude that if anyone should have their name attached to this Court, it's Mitch McConnell, who effectively created it and whos

There is much to unpack in the Supreme Court’s decision in 303 Creative LLC v. Elenis , which held that compelling a web designer to create a wedding website for same-sex customers would force her to express messages contrary to her deeply held religious beliefs and therefore violate her free speech rights. This post is devoted solely to exposing the ludicrousness of equating 303 Creative to the landmark free speech decision in West Virginia v. Barnette . According to the Supreme Court, Colorado’s law in 303 Creative was akin to the West Virginia law in Barnette that compelled public school children to recite the Pledge of Allegiance even when contrary to their deeply held religious views. Just as it was abhorrent and unconstitutional to mandate orthodoxy in Barnette , the Court says, so is it in 303 Creative , and both deserved to be struck down. It is a clever move, given Barnette ’s status in free speech jurisprudence and its famous declaration that “If there is any fixed sta

[N.B.  It is customary among those who regard the birth of our American republic as either a mixed blessing or an unfulfilled promise to point to the July 5, 1852 speech of Frederick Douglass , commonly known for the line "What to the Slave is the Fourth of July?".  It is a great speech, to be sure, but for this year's Fourth of July, I thought instead to post a speech that Douglass delivered over three decades later, on October 22, 1883. I do so for three related reasons. First, in the 1852 speech, Douglass makes the dubious claim that he and some other abolitionists made elsewhere--that the ante-bellum Constitution, properly understood, is not pro-slavery. Second, even those who are more Garrisonian in their outlook might be tempted to think that the Civil War and Reconstruction addressed the Constitution's most glaring defects. And third, in light of last week's SCOTUS decisions using the Fourteenth Amendment to undercut equality, I thought it more fitting to h

There is much to say and criticize about the Supreme Court's 2022-23 term. The justices decided to micromanage the admissions policies of many colleges and universities nationwide without any justification in text or history, striking a major blow against diversity on our campuses. The justices invalidated President Biden's plan to deal with student loans after the Covid-19 emergency. The plan was authorized by a federal statute giving the president discretion to modify or waive student loans in time of war or emergency. And the justices reached out unnecessarily to privilege expressive rights under the first amendment over Colorado's efforts to fight LGBTQ discrimination. These cases, and several others, represent major changes to constitutional law, with harmful effects on the ground to follow. There is no shortage of commentary on how the Roberts Court is moving constitutional law far to the right. One important aspect of the Court's cases this term that so far ha