Dorf on Law

One can never tell with certainty how the Supreme Court will rule based on the statements and questions from Justices during the oral argument. Nonetheless, I agree with the general consensus that, based on last Wednesday's oral argument in United States v. Skrmetti , at least five of the Court's six conservatives are likely to vote to uphold Tennessee's ban on gender-affirming care for minors. In today's essay, I'll explain why I am dubious that anyone will be able to write a persuasive opinion for that result relying on the grounds that most of the Court's conservatives apparently favor--a principle of deference to state legislation regulating medical treatments. I suspect that most readers are familiar with the case, so I offer the barest sketch. Tennessee and roughly half of the other states in the country have, in very recent years, banned gender-affirming care for minors. A federal district judge enjoined the Tennessee ban as unconstitutional, but the US C...

I recently wrote an article about teaching constitutional law as a legal realist for a symposium on legal education at the University of Pittsburgh. My main conclusions were the following: 1) Students need to learn the black letter “law” which is itself a challenging enterprise; (2) the   incoherence   of   the   Court’s   constitutional   law   cases   helps   students   improve   their   critical   thinking;   (3) if   a   student   is   going   to   practice   constitutional   law,   she needs to be able to manipulate formalism, history, text, and legal rules even if those tools do not drive results on the ground; and (4) I disclose my general beliefs about the Court to students on the first day of class so they have an idea what the course is going to be like. This post supplements that article with a few more thoughts and suggestions. If you believe doctrine dicta...

It is honestly surprising that the Hunter Biden pardon is still in the news at all.  The story does seem to be fading, but the editorial board of The New York Times decided to offer its collective-eyebrow-furrowed take on the situation yesterday, giving the story renewed oxygen.  At best, we now seem doomed to have this incident pop up in discussion every now and then, with "even some Democrats agree it was bad" being the regrettable lead-in. Two days ago, I wrote a long column responding to the hand-wringing about the pardon, while Professor Dorf wrote a thoughtful analysis of " Familial Pardons and Nepotism More Broadly " yesterday.  Because the pardon story has a longer tail than I ever could have expected, today I reluctantly add to the word count about what should have been a minor story.  As an initial matter, I will add to my analysis of the commentary -- most of it misguided, though with some welcome exceptions -- focusing on the two key complaints: (1) Jo...

In the couple of days after President Biden announced that he had issued a pardon to his son Hunter, I received a number of inquiries from reporters asking whether the U.S. should restrict the ability of presidents to issue pardons. The question is naïve bordering on nonsensical. Should  implies can . Only a constitutional amendment could restrict the presidential pardon power, and at no point in the foreseeable future will there be a sufficient bipartisan consensus to amend the Constitution for this purpose or almost any other. The question is thus like asking whether humans should send a rocket ship at faster-than-light speed to colonize a planet revolving around a distant star. Because we cannot do so (faster-than-light travel being against the laws of physics), there's no point in asking whether we should. One could, of course, treat the question purely hypothetically: If one were designing a constitution, would it make sense to vest the pardon power solely in the president? W...

The country and the world have had four weeks to process and try to explain the outcome of the 2024 US elections, but the analysis is not getting any better.  Joe Scarborough's hot take on the morning after the election that it was a "red wave" unlike anything since Reagan's 1984 landslide was obviously wrong even before the later vote-counting turned Donald Trump into "Mr. 49.8."  (In a November 22 column , I called Trump "Mr. 49.9" but promised that I would adjust that moniker as appropriate .)  All of the other nonsense -- blaming "the left" for caring about pronouns, and on an on -- has been as predictable as it is infuriating. And none of that misanalysis has changed or been updated, even given nearly a month to reconsider the situation and pay attention to something called data.  Unfortunately, that failure to update opinions in the face of a fearful new world is not limited to assessments of the election itself.  Despite the Hercu...

When the Supreme Court eliminated the constitutional right to abortion in 2022 in the Dobbs case , the three dissenting Justices worried--and Justice Thomas in a concurrence hoped--that the ruling portended the elimination of other unenumerated rights. Justice Thomas named Griswold v. Connecticut   (finding a right of married couples to use contraception), Lawrence v. Texas  (finding a right of consenting adults, including gay adults, to sexual intimacy), and Obergefell v. Hodges  (extending the marriage right to same-sex couples), as among the precedents he wished to reexamine. Justice Alito's majority opinion disclaimed any interest in overruling these or any other cases not involving abortion, but his ground for distinguishing the other rights was a non sequitur : they don't involve the destruction of human life or potential life; that's a non sequitur because the Court's rationale for rejecting the abortion right was that it lacked a proper historical pedigree circa...

A recent article in The New York Times examined the firing (or more politely, the "departure") earlier this year of Ben Sasse, the former US Senator from Nebraska.  Sasse had just a year earlier resigned his Senate seat after he was almost inexplicably hired as President of the University of Florida's flagship campus in Gainesville (UF).  " A Star President’s Resignation Was a Mystery. Was It All About Rankings? " was the work of Stephanie Saul. Saul writes with penetrating insight about higher education in the United States, and her work is always thorough and fair.  (And to be clear, I would say that even if her reporting on my own situation at UF had not played a prominent part in an article that she wrote last December.)  Indeed, she is one of the best of a dwindling number of reasons to continue to subscribe to The Times .  Her recent article is especially useful in two ways. First, the central question in the article is the degree to which UF's manic...

These days with the Supreme Court acting like the Republican Court, I often think about the chain of evnts that led me to become a hard core legal realist. I wrote about this part of my career once before but thought I'd revisit the question as I approach my late 60's and my career is winding down a bit. I was not a legal realist before I reported to work at the United States Department of Justice in the fall of 1987. I did have dinner with my closest friends the evening before who had previously been surprised I decided to work for the Bush Administration, given my liberal politics. I knew several people working in the Federal Programs Branch where I was heading, and they told me they rarely worked on political cases. I told my friends that I would not work on abortion or separation of church and state cases (as a matter of policy I am a strict separationist), but I could manage the rest.  I was assigned two cases my first day on the job. One of them, of course, was a major F...