Showing posts from December, 2023

Justice Thomas's Contradictions: Of Decency, Empathy, and the Judicial Role (A Classic)

This has been quite a year for Justice Thomas, which puts this classic post ( from October 2021 ) possibly in a different light. While I recognized that his warm demeanor with people he works with and who he meets on his travels near and far is a positive quality, his legal decisions lack any sense of decency, empathy, or appreciation for the appropriate judicial role. ----------------------------------------------------------------------------------------------------------------------------- Last week on my  podcast  Supreme Myths, Dahlia Lithwick talked at length about the need for judges to display empathy and decency in their judicial opinions and to show that they at least appreciate the problems of people unlike themselves. As an example, she pointed to Justice Kagan's tendency to write opinions in the second person: "Imagine yourself...." That kind of empathy tells the parties that the judge understands their points of views and may make it just a little easier for

The Supposed Dangers of Moving to Canada (a retitled Dorf on Law Classic)

Note to readers: Given how frequently I've written this year about my relocation to Canada (a move that even made me a very minor one-day New York Times celebrity ), it only makes sense in choosing a Classic column to reach back to when I began writing essays that were rather poorly disguised messages regarding my intention to bug out of the US. Therefore, I offer here a column that was originally titled " The Canadian Right: Adolescent Snark, Very Personal ad Hominems , and Laughable Bothsidesism ," which was published almost two years ago (January 12, 2022).  As I put it at the end of the column, regarding the possibility of moving north of the border: "[S]ign me up!"  I wish all of you a happy new year, no matter where you live.   Should we all just move to Canada? Last week saw a significant worsening of the already dire political situation in the United States.  Although Republicans had spent the last year trying to block or hobble investigations into

Still Searching for a Center-Left Post-Neoliberal Program: A DoL Classic (from 3 years ago)

We are in holiday break mode. Accordingly, here's a classic (i.e., rerun) from almost exactly three years ago ( original version here  with the title "Fish, Coal, and the Symbolic Value of Dying Industries"). I believe it has as much relevance now as it did then. ---------------------------------------------- On Christmas Eve (2020), the European Union and the United Kingdom reached a trade deal that prevents the latter from "crashing out" of the former, albeit by a so-called "hard" rather than "soft" Brexit. The UK will still be able to export and import goods to and from the EU without tariffs or quotas, but because the deal does not cover financial or other services, London will lose a good deal of business, which in turn will undercut economic growth for the whole of the UK. Nonetheless, under the circumstances, the deal is about the best that the UK could have hoped for. Had EU leaders allowed the UK to exit on more attractive terms, it

A Few End-of-Year Loose Ends -- Mostly Featuring You-Know-Who

As the year draws to a close, I wanted to add a few final thoughts to the holiday and new year's wishes provided by my co-bloggers last week. (1) As readers may have seen, on Friday of last week, my Verdict column implored the Supreme Court to grant Jack Smith's petition for cert before judgment to reject Donald Trump's claimed immunity to prosecution and to summarily affirm the Colorado Supreme Court's ruling that Trump is ineligible for the Presidency under Section 3 of the Fourteenth Amendment. Barely were the electrons dry on my Verdict column (which went up at midnight as Thursday became Friday) when the Court half-mooted it by denying Smith's petition . (2) Various commentators have rightly pointed out that the Court's rejection of Smith's petition does not necessarily reflect any view on the merits. It does, however, allow Trump's delaying strategy some greater chance of success. The Trump legal team's DC Circuit brief makes the same terribl

Some Light Entertainment from the College Football Scene

Because this is almost certainly my final Dorf on Law column of the year, it seems like a good time to lighten the mood and turn away at least briefly from the litany of tragedies in politics, higher education, foreign policy, and everything else that has consumed my time in 2023. So why not talk once again about college football, the one socially destructive topic that is truly optional in my life but from which I cannot break my addiction?  Yes, even this topic has a true downside , but in the spirit of the season, my focus here is on three silly things that became big stories in the soon-to-be-completed college football season.   Coaches Make a Lot of Money (and think they deserve it) : The least important (with huge air quotes around that adjective) among these three examples of sports inanity was a mini-controversy at the end of October surrounding the head coach at Clemson, Dabo Swinney, who had led his team to a couple of national championships in the last decade but was presi

Unilateral Disarmament after Colorado's Trump Disqualification Case: What Could Go Wrong?

"And if you don’t do this and if I don’t do it, one of these days you and I are going to spend our sunset years telling our children, and our children’s children, what it once was like in America when men were free."  That is the closing sentence of a speech delivered by the former actor Ronald Reagan as he transitioned into a political career in the early 1960's.  What is the "this" and the "it" that his listeners and Reagan were required to do, lest Americans lose their freedom?  Why, oppose the creation of Medicare, of course!  You know, socialized medicine, the road to serfdom, and all that. In the decades since Reagan spoke those words, they have become infamous -- even mockable -- because of their context, purpose, and the overwrought parade of horribles to which they referred.  Even so, there are times when freedom truly is at stake, and I recently could not help but think about the larger question in the dystopian future that the writers of Re

An Originalism Scorecard Since Justice Barrett Arrived on the Court: Living Constitutionalism is Way Ahead

Justice Amy Coney Barrett was confirmed to be a Supreme Court justice in late October, 2020 (just before Donald Trump lost the election). Since her arrival, four justices now self-identify as full-blown originalists (Thomas, Gorsuch, Kavanaugh, and Barrett) while Justice Alito is an on and off again originalist, and even Justice Jackson at times has shown great interest in originalist sources. Yet the most important cases of the last three terms have been almost totally devoid of originalist analysis. The reason for that omission is that none of the alleged originalists on the Court uses that method of constitutional interpretation unless it supports their views. In other words, they are conservatives and Republicans first, originalists only when convenient, which is to say that none of them are originalists at all. I have little doubt that at some future date the failure of these four justices to actually use originalism and even decide some cases against the most persuasive historica

Justice O’Connor: A Remembrance (Guest post by Justin A. Nelson)

[Editor's Note: Justin A. Nelson is a partner in the law firm of Susman Godfrey and a former law clerk to Justice Sandra Day O'Connor.] For every Supreme Court clerk, at least three or four more could capably fill the position. Luckily for me and my co-clerks, Justice O’Connor liked hiring people with Western ties. And she loved Texas. My year, three of us grew up in Texas. The fourth hailed from Colorado. Geography was not some idle detail to Justice O’Connor. Over the course of the clerkship, she encouraged us to seek our own way outside of Washington, D.C.  Every year, she would take her clerks on a trip, usually well outside the city limits of Washington. Our term, we visited Lancaster, Pennsylvania and toured Amish Country. Unlike in D.C., where heads swiveled every time she entered a room, we ate a great meal at a crowded restaurant with hardly a notice. The world, she would tell us, did not revolve around D.C.  Justice O’Connor took justified pride in being a fantastic r