Showing posts from November, 2023

The Persistence of Public Rights Doctrine (Jarkesy Oral Argument Edition)

The good news coming out of yesterday's oral argument in SEC v. Jarkesy is that the Justices and advocates spent almost no time discussing two of the Fifth Circuit's preposterous reasons for finding that SEC enforcement actions are unconstitutional. (1) The Fifth Circuit had said that Congress, in leaving to the agency the decision whether to bring an enforcement action in the agency or in federal court, violated the nondelegation doctrine by failing to provide an intelligible principle. That's absurd because federal enforcement agencies routinely exercise enforcement discretion--for example about whether to bring a prosecution at all --that is equally unguided by legislation and that has higher stakes. If this is a violation of the nondelegation doctrine, everything is. (2) As an alternative ground for its holding, the Fifth Circuit invoked the SCOTUS decision in  Free Enterprise Fund v. Public Co. Accounting Oversight Bd. to hold that the two layers of for-cause protec

Anti-Trump Christians' Criticisms of Pro-Trump Christians are Important but Self-Absolving

Donald Trump's recent efforts to extinguish all remaining doubt about whether he is a fascist have, of course, led to an outpouring of criticism and alarm. The Atlantic published one high-profile critique last week: "Have You Listened Lately to What Trump Is Saying?"  That piece, by Peter Wehner, carries the sub-headline: "He is becoming frighteningly clear about what he wants." Wehner is a former George W. Bush speechwriter and a fellow at a right-wing political shop run by writers who link their policy views to their Christian beliefs.  He emerged in 2016 as a forceful voice against Trump (for example, here ), decrying the embrace by Wehner's fellow religious conservatives of that most ungodly of politicians. I will return to Wehner's Atlantic piece in a moment, but I first want to focus on a comment that he made during an interview on Monday on MSNBC's "Morning Joe."  The segment , titled "Some Christians are enthusiastically

Of Separation of Powers, the SEC, and the Limits of Originalism

Tomorrow the Supreme Court will hear oral argument in a complicated case involving the constitutionality of the Securities and Exchange Commission ("SEC"). The SEC employed its in-house enforcement proceedings to fine the plaintiff's firm $300,000 for securities fraud and ordered it to repay nearly $700,000. The plaintiff brought three challenges to the fines, and he prevailed in the lower court.  First, he argued that he was entitled to a jury trial under the Seventh Amendment, which provides that in " suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved...." The Court has long held that this right to a jury trial does not apply to so-called public rights which were not in existence in 1791, such as those created by the securities laws. The plaintiff wants the Court to overturn or greatly limit that doctrine. The plaintiff's second argument is that  Congress is not allowed to delega

Today at SCOTUS: Guns or Drugs?

Whenever I teach the federalism portion of my first-year constitutional law course, at least one cynical (but clever) student observes that the juxtaposition between United States v. Lopez  (invalidating the Gun Free School Zones Act as beyond the scope of Congressional power) and Gonzales v. Raich  (upholding the federal prohibition on possession of marijuana even when it is permissible under state law) has little to do with the Supreme Court's interpretation of the Commerce Clause or the Necessary and Proper Clause; rather, the cynic will say, the Justices (or at least some Justices) like guns but dislike drugs. I usually say that this sort of an explanation may well be correct as a causal account and should certainly inform the giving of legal advice and litigation strategy, but that you can't put it in your brief. And sure enough, the briefs in Brown v. United States -- in which the SCOTUS is hearing oral argument today -- do not directly appeal to the Justices' priors

Top Ten Holiday Wishes to Improve the Supreme Court

The winter holiday season begins this week. Best wishes to all Dorf on Law readers.  Writing about the Supreme Court roughly once a week (or more) can be a depressing business. In just the last few years, the Court ended abortion rights, tried to end affirmative action (we will see), converted both the Free Exercise Clause and the Second Amendment into nuclear-charged constitutional provisions, destroying many good laws in their wake, and is reverting back to a pre-New Deal understanding of federal power. It is all a bit much and so sad that my social media nickname is "Dr. Gloom and Doom." I'm not a doctor but when it comes to the Court, doom and gloom is a fair description of how I feel.  However, as the holidays are around the corner, I decided to make my top ten wish list for ways to improve the Supreme Court. This is all fantasy but, hey, I'm hoping for a new nickname. These ten wishes are not in any discernable order and do not reflect my substantive ideological

Is the Unitary Executive Theory Any More Sensible Than The Unitary Supreme Court Theory?

In my latest Verdict column , I revive an idea that Professor Lisa Tucker and I first championed over a decade ago based on a bill that was then pending in the Senate Judiciary Committee and initially suggested by Justice John Paul Stevens: when a Justice cannot participate in a case because of a recusal or other disqualification, a retired Justice could "come off the bench" to fill in. As I explain in the new column, there are currently four retired Justices but Justice O'Connor has withdrawn from public life due to dementia. I have nothing but the best wishes for the other three--Justices Kennedy, Souter, and Breyer--but they're all in their mid-80s and perhaps not ideally suited to (or necessarily interested in) being pinch-hitters. Accordingly, as long as I'm making proposals, I add in the column a suggestion that SCOTUS could draw on its farm team (to overplay the baseball analogy) by bringing in substitutes from the federal appeals courts. Doing so would re

Public and Pundit Confusion Between Slowing Inflation and Promoting Deflation

Here on the blog yesterday I drew an analogy between popular confusion about fiscal policy (highlighting the frequent but misleading comparisons between household finance and public finance) and legal interpretation (describing the popular appeal of original-intent originalism as rooted in a misleading comparison to everyday speech). At the end of yesterday's essay, I suggested that there are likely other similar public misconceptions that work in roughly the same way. I gave as an example of one roughly analogous phenomenon the frequent claim that government or universities should be run like businesses. Because I closed the blog to comments a while back in response to spammers and trolls, I didn't end yesterday's essay with a call for readers to provide additional examples but that didn't stop some intrepid readers from writing to me privately. One such reader offered public misunderstandings about inflation as an example. The particular misconception people hold abo

Household Finance Versus Sovereign Finance, Everyday Meaning Versus Legal Meaning, And Other Confusions

This semester I have been teaching a new seminar that focuses on the relation between the US Constitution and the economy, broadly defined. In addition to studying particular provisions (e.g., Takings Clause) and doctrines (e.g., dormant Commerce Clause), my students and I have also been looking at broader issues, including questions of political economy (with a lively session on the excellent book by Joey Fishkin and Willy Forbath, The Anti-Oligarchy Constitution ) and interpretation (e.g., the relation between law and economics, on one hand, and originalism and textualism, on the other--as discussed in this article  by Prof Buchanan and me). As with any such endeavor when it succeeds reasonably well, I have learned at least as much from the terrific students in the seminar as they have learned from me. Today's essay arises out of an interesting student observation during our most recent meeting. One of the readings I assigned for this week was the article by Prof Buchanan and me

The Status of the SCOTUS Code of Conduct

The release on Monday of a Code of Conduct for Justices of the Supreme Court  was met with almost instantaneous scorn by people and organizations who had been complaining about the lack of such a code and questioning the conduct of various Justices, especially Justice Thomas. These critics pointed out--correctly--that the Code contains no enforcement mechanism. As the official statement of Take Back the Court puts it, "With 53 uses of the word ‘should’ and only 6 of the word ‘must,’ the court’s new ‘code of ethics’ reads a lot more like a friendly suggestion than a binding, enforceable guideline." I would point out that even if the Code used the words "shall" and "must," it would still be best characterized as hortatory, given the lack of any enforcement provisions. I'll return below to the question of enforcement, but first I want to make a further observation that I have not seen others make: I find it significant that while the introductory page to

Why Does Anyone Support Joe Manchin or Other Potential Presidential Third-Party Candidates?

Like many other Democrats, in the last several years I have often found West Virginia Democratic Senator Joe Manchin's efforts to undermine progressive legislation--especially on elections and the environment--frustrating, but I understood that unlike his frequent quisling comrade-in-arms Kyrsten Sinema, Manchin was severely constrained by the politics of his home state. Votes that were easy for Senators from Massachusetts or California were fraught for a Senator from a state in which the Democratic Presidential candidate won less than 30% of the vote in 2016 and 2020. Notwithstanding Manchin's sometimes maddening and shifting positions, I was and remain grateful for his votes to confirm President Biden's nominees and simply for his presence in the Senate because it gave Democrats control of committees and the floor. Accordingly, I am disappointed that he has chosen not to run for re-election. To be sure, the fact that Manchin isn't running for re-election in 2024 makes

One of Judge Luttig's 14th Amendment, Section 3 Arguments is Too Clever By At Least Half

As attentive readers of this blog are aware, I have a modest disagreement with my friend and co-blogger Professor Segall about whether Donald Trump should be disqualified from the 2024 Presidential ballot pursuant to Section 3 of the 14th Amendment. Professor Segall thinks that there are too many difficult questions to which the text and original understanding do not unequivocally speak and that disqualifying Trump could lead to violence by his supporters; I think some of the questions Professor Segall identifies as dividing scholars are actually pretty easy to resolve (against Trump), and while I acknowledge that it would be better to beat Trump at the polls than to disqualify him, the fact that he has shown himself willing to use violence to challenge the results of an election make that a problematic route; I also regard Trump as an existential threat to constitutional democracy and much else, so I'm willing to support any peaceful and legal means to prevent him from regaining

Update: Unanswered and Important Questions About How a Former Turning Point Employee Ended up Living in the Thomas' Home and Working in Judge Bill Pryor's Chambers

As I've blogged about before , in 2017, according to Jane Mayer of The New Yorker , an employee of Turning Point USA, Crystal Clanton, sent a text to a friend which said,  “I HATE BLACK PEOPLE. Like f**k them all.” She was forced to leave the far, far, right Charlie Kirk organization and also signed a Non-Disclosure Agreement regarding the firing. Before that, though, she said   "I have no recollection of these messages and they do not reflect what I believe or who I am and the same was true when I was a teenager." T here was no explicit denial and definitely no apology. I want to say before we get into the troubling details of what happened next that had she fully apologized and owned her mistakes the story would be over (for me at least). Somehow, shortly after Clanton left Turning Point, she ended up living in Justice Thomas's house. She allegedly got paid for helping Ginny Thomas with social media work then enrolled at Antonin Scalia Law School. From there she obt