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Showing posts from February, 2024

Justice Thomas and Race: Making Life Harder for People of Color One Case at a Time

News broke last week that Justice Clarence Thomas hired as a law clerk a former fired employee of a far-right organization whose text message to a friend included these sentiments, “I HATE BLACK PEOPLE…I hate blacks. End of story.” The background to this entire sordid story can be found here . Why Justice Thomas would go out of his way to help this woman raises challenging questions about Justice Thomas and race that have perplexed legal scholars for decades. Why would a person who grew up in the segregated south issue so many decisions that hurt people of color? Those trying to answer this question have taken it as a matter of faith that Thomas’s decisions have in fact and on the ground hurt racial minorities. But conservatives dispute that premise, so it is important to establish how truly awful Thomas’s jurisprudence has been for non-white Americans. Why he has engaged in this path of racial destruction is less important than assessing the damage his decisions and his rhetoric have

The Partial Facial Challenge Option in the Netchoice Cases

Much of the oral argument yesterday in Moody v. Netchoice focused on the fact that the respondents brought a facial challenge to Florida's law forbidding (as the Eleventh Circuit described it ) "certain social-media companies from 'deplatforming' political candidates under any circumstances, prioritizing or deprioritizing any post or message 'by or about' a candidate, and, more broadly, removing anything posted by a 'journalistic enterprise' based on its content." Why is that significant? Because under the Court's precedents, a facial or overbreadth challenge to a law regulating speech can succeed only if the challengers can demonstrate that the law is "substantially" overbroad, as "judged in relation to [its] plainly legitimate sweep." Neither the plaintiffs/respondents nor the defendants/petitioners thought that was a problem. Florida Solicitor General Henry Whitaker claimed that the state law is not overly broad because

It's About the Women, not the Embryos

The Alabama Supreme Court's ruling that frozen embryos are people almost immediately led fertility clinics around the state to halt their in vitro fertilization (IVF) treatment programs. That result was entirely predictable. IVF requires the creation of "extra" embryos. Given the burden and cost of egg retrieval as well as the risk that any given embryo will not successfully implant or will lead to a pregnancy that miscarries, fertility doctors retrieve multiple eggs. And because frozen embryos lead to a higher pregnancy success rate than frozen eggs that are fertilized after defrosting, standard procedures yield those extra embryos. But frozen embryos are what the Alabama Supreme Court calls "extrauterine children," so now IVF creates a substantial risk of legal liability. The recent Alabama Supreme Court decision construed the state's Wrongful Death of a Minor Act , which provides a civil cause of action for the minor's parents. It left open the poss

Free Speech and the Irrelevancy of Text and History to Constitutional Interpretation

In 2018, Professor Jud Campbell, now of Stanford University, wrote a pathbreaking article in the Yale Law Journal demonstrating that our current first amendment doctrine is almost exclusively based on common law constitutionalism, not text or history. There may or may not be anything wrong with that way of enforcing the first amendment but it is ironic that a Court full of alleged textualists and originalists issues decisions on a yearly basis enforcing free speech principles without persuasive grounding in text or history. Although a few originalists have tried to address Campbell's descriptive account, none in my view have come remotely close to persuasively rebutting Campbell's thesis.  And now comes Professor Ronald Krotoszynski, Jr., whose excellent article, " Common Law Constitutionalism and the Protean First Amendment ," makes very similar arguments as to the complete irrelevancy of constitutional text and history to judicially crafted first amendment doctrine

Naming Controversies, Utilitarianism, and No Accounting for Taste

In what was almost assuredly the final minute of my most recent fifteen minutes of fame (which was sparked by a NYT article in early December 2023), I appeared on a podcast a few weeks ago.  Hosted on the Inside Higher Ed site, "The Syllabus" bills itself as a podcast about campus politics.  My conversation with the host lasted about 45 minutes, 23 minutes of which ended up going into the podcast, which was posted early this month. The host, Mark Oppenheimer, and I spent the bulk of the time talking about why university faculty tend to be Democrats rather than Republicans (and whether that is at all important), a discussion that I will summarize and extend in a future column.  To my pleasant surprise, however, Mr. Oppenheimer had also gone to the effort of reading quite a few of my columns here on Dorf on Law , including my writings about the Stanford Law incident last year in which a far-right federal judge auditioned to be the next Supreme Court diva (which I summarized

Justice Alito's Hypocritical and Question-Begging Dissent in the Fairfax County Magnet School Case

On Monday, I noted that the Supreme Court had continually re-listed an important case involving a challenge to facially race-neutral admissions criteria for a Fairfax County, Virginia, magnet school. Yesterday, the Court finally denied certiorari. Justice Alito, joined by Justice Thomas, dissented from the cert denial in Coalition for TJ v. Fairfax County School Bd . The dissent makes a number of key points to which I anticipatorily responded in my forthcoming Texas Law Review article,   Race-Neutrality, Baselines, and Ideological Jujitsu After Students for Fair Admissions . Here I'll say a few words about what's wrong with the Alito/Thomas dissent in Coalition for TJ . The starting point for my forthcoming article, for a recent article by Professor Sonja Starr in the Stanford Law Review , and for a large body of scholarship that she and I each cite, is that for many years the conservative Justices on the Supreme Court have pointed to facially race-neutral means of achieving

SCOTUS Repeated Relisting of a Case on the Meaning of Race Neutrality--and a Plug for my new Article

Last year, in the course of severely curtailing race-based affirmative action in higher education (and likely in other contexts too), the majority opinion of Chief Justice Roberts in Students for Fair Admissions (SFFA) v. Harvard  appeared to throw admissions officers a bone. Although they could no longer consider an applicant's race per se , they could give weight in evaluating admissions essays to an "applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise." Is that a viable loophole? If a selective college or university makes a good-faith effort to measure applicants' experiences of race (but not race itself), and the result is a racially diverse class, will that create a risk of liability when the same groups that waged a successful decades-long battle to end expressly race-based affirmative action inevitably sue, arguing that the defendant institution is really just using experience of race as a proxy f

SCOTUS Ducking the Trump Eligibility Question Now will Pressure the Court to Rule in his Favor Later

As I discussed  on the blog last week and in a Verdict column earlier this week, the oral argument in Trump v. Anderson   indicated that SCOTUS is likely to reverse the Colorado Supreme Court on the ground that a federal actor, not each of the fifty states, should make the key decisions regarding who becomes President. In my view, that would be seriously misguided because it's practically a non sequitur. For better or worse (okay, almost entirely for worse), the U.S. Constitution expressly grants the states the primary role in choosing the President--even to the point that states can, if they so choose in advance, select their Electors for the Electoral College by means other than an election. No one who has taken high school civics, much less any Justice of the Supreme Court, could reasonably conclude that states are somehow barred from deciding important questions regarding Presidential elections. I'm not alone in that conclusion. In a thread on X , Prof Jed Shugerman repor

The Unexpected "So Anyway" Stage of the US's Political Implosion

In a column last week here on Dorf on Law , I wrote: "Some days, I find that I can write about, say, business regulation or fear-mongering about the federal debt.  Too often, however, it is impossible to ignore that there is now open talk of political killings ."  That last reference was merely an example -- and not even a uniquely worrisome one in the current environment -- of how crazy each day's Republican/Trump-related news has become. In the nine days since I wrote that column, I have managed to write my two regularly scheduled columns on relatively normal law/policy/economics topics: (1) an analysis of a Supreme Court case that is ridiculous but in a non-Trumpy way, and (2) a discussion of how the "behavioral revolution" in economics is not merely the bullsh_t that it obviously was all along but is also rife with academic fraud and is pushing real-world policy in dangerous, trivial, or self-defeating directions.  I thus succeeded for a solid week in c

Trump's SCOTUS Stay Application Says the Quiet Part Out Loud

As everyone paying attention expected, on Monday Donald Trump's lawyers filed an application to the Supreme Court seeking a stay of the DC Circuit ruling that he lacks immunity to criminal charges arising out of his role in subverting democracy leading up to and on January 6, 2021. That filing was expected on Monday because, by the terms of the DC Circuit order accompanying its substantive ruling, its own stay would expire unless Trump sought a stay from SCOTUS. Importantly, by the terms of the DC Circuit order, its stay remains in effect "pending the Supreme Court's final disposition of the application." Yesterday, the Court ordered Jack Smith to file his response by Tuesday of next week. I would not be surprised if Smith files even sooner, because delay benefits Trump. Indeed, the application baldly admits as much. In setting out reasons why failure to stay the DC Circuit ruling would irreparably harm Trump, the application states that he  is the leading candidate

The Downfall and Consequences of the Cheap-and-Easy 'Behavioral' Dodge in Public Policy

The last decade or so witnessed the emergence of a subfield of social science analysis known as "nudge research."  It became all the rage, and governments around the world (including the US federal government and many state governments) created research policy groups to devise so-called nudges to improve social and economic outcomes.  Want to get people to be more honest in filing their taxes?  Nudge them by putting the "I'm not lying" statement on the top of the form rather than at the bottom, and more people will file honestly (or less dishonestly).  Easy! That research was based on what had come to be known as behavioral economics, or BE (spawning a nearly identical offshoot in legal scholarship called Behavioral Law & Economics, or BLE).  The idea is that people can be led to make different decisions based on identical information simply by changing the way that the information is presented.  In the case of the tax-honesty pledge, attesting to the same