Showing posts from June, 2024

For Rahimi: Two Cheers (the Result and the Methodology) and a Few Jeers

One would need to be especially cynical to read today's SCOTUS opinion in United States v. Rahimi  as anything other than good news overall. The American gun-rights movement has organized itself around the notion that it takes a good guy with a gun to stop a bad guy with a gun (and yes, for that crowd, it's almost always a guy ). Yet, as Chief Justice Roberts lays out in detail in his nearly unanimous opinion for the Court, Rahimi is a decidedly bad guy. He bashed his then-girlfriend's head against a car dashboard; he then got his gun and fired at her as she fled (or possibly at a witness); he violated an ensuing domestic violence protective order by menacing the ex-girlfriend; he was charged with aggravated assault against another woman; and the police suspected him in at least five shootings. If Rahimi had been found to have a Second Amendment right to go about armed, it is hard to see how anybody would not. Only Justice Thomas dissented. The result of the case is thus wo

SCOTUS Decision in Diaz v. U.S. is Wrong, but it Doesn't Depend on Mind Reading

[ **Updated  note to readers: SCOTUS handed down five rulings this morning. I have now posted an essay about  United States v. Rahimi , rejecting a Second Amendment challenge to a federal statute forbidding firearms possession by people subject to domestic violence protective orders. At some point next week I'll write about  Dep't of State v. Muñoz , rejecting a constitutional right of a U.S. citizen to an explanation for the government's denial of entry to her non-citizen spouse. Below, I discuss a SCOTUS decision handed down yesterday.] When Delilah Diaz was stopped at the Mexico/U.S. border, federal agents found 54 pounds of meth in the car she was driving. Under questioning, she denied knowledge of the drugs, saying that the car belonged to her boyfriend. At Diaz's trial, the government called Homeland Security official Andrew Flood as an expert witness. Flood didn't know and hadn't interviewed Diaz. He was called as an expert on drug trafficking and testif

Groupthink, Echo Chambers, and Republican Extremism: Difference in Degree is Difference in Kind

[Note to readers: This morning, the Supreme Court handed down a decision in Moore v. US , a case that had the potential to upend the entire American tax system and thus to create an economic disaster.  I published Dorf on Law columns discussing Moore six months ago, four months ago, and three months ago.  The Court's decision was a pleasant surprise, but it includes some potential time bombs that are worth considering in detail.  I will turn to that case next week.] What do I think about Issue X, Y, or Z?  More to the point, how do I come to think about X, Y, or Z in the way that I do?  Because I am not a hermit and thus value the thoughts of other human beings, I do what most people do: take as much time and effort as seems appropriate under the circumstances to study the facts and others' arguments, allowing me at least to come to a tentative conclusion after considering the issue's complexity, importance, transparency, and so on. Do I listen to everyone?  Of course n

The Supreme Court, First Amendment Foolishness, and the Irrelevance of Text to Constitutional Litigation

As we wait for what is sure to be a cacophony of calamitous cases coming later this week and next, I thought it might be interesting to drill down on the text of the first amendment to show how little the words of the Constitution matter to actual constitutional doctrine. Although this blog post is devoted exclusively to the first amendment, the discussion of how far the Court has strayed from the plain meaning of the text applies across constitutional law, as I showed here in a much longer piece. For example, I won't discuss in this post the invisible federal equal protection clause, the invisible anti-commandeering clause, and the Court's decisions turning around the clear text of the 11th Amendment to mean the opposite of what it actually says, and so much more. Today, is first amendment day here at Dorf on Law. The first amendment says the following: Congress shall make no law respecting an  establishment of religion , or prohibiting the  free exercise  thereof; or abridgi

The Widespread Damage of a One-Party Autocracy Will Flow from Republicans' Bad Policies, Not Bad Procedures

Imagine that I am correct in predicting that Donald Trump will be reinstalled in the White House after losing the 2024 election.  For that matter, go ahead and imagine that he is declared the winner in November and that President Biden concedes.  Either way, Trump ends up back in the White House.  Once there, imagine further that I (along with others) am right that Trump and the Republicans will act on their stated goals of exacting retribution against Democrats, entertainers, journalists, and so on by prosecuting them, deporting them, or ruining them financially. Imagining all of that, a person might think something like this: "American fascism would be an ugly thing, but millions of people have lived under totalitarian regimes throughout human history.  And while that's bad (perhaps even fatal) for targeted minorities and political opponents of the dictator's regime, life will go on for most people.  I happen to be one of the non-targeted people, and although I would be

Is the Nathan's Disqualification of Joey Chestnut Good for the Cows?

The United States tends to celebrate its national holidays through rituals that harm non-human animals. Thanksgiving is colloquially called "turkey day" in recognition of the slaughter and consumption of millions of the birds so admired by Benjamin Franklin . Memorial Day honors those who lost their lives defending our nation by sacrificing millions of nonhumans for barbecuing . The Fourth of July is especially lurid. In addition to fireworks displays that terrify (and sometimes result in the death of) family pets and any nearby wildlife , for half a century, we have also marked the anniversary of our independence from Great Britain with the spectacle of the Nathan's Hot Dog Eating Contest. Gourmands compete to see who can devour the most tubes of 100% ground-up parts of slaughtered cows in a short time (currently ten minutes). Joey Chestnut is the reigning and 16-time Nathan's Hot Dog Eating champion. He is also the world-record holder (an astounding 76 hot dogs and

Why Did Justice Alito Join in Rejecting Standing in the Mifepristone Case?

In my essay after the oral argument in  FDA v. Alliance for Hippocratic Medicine , I more or less predicted that the Supreme Court would coalesce on a holding that the anti-abortion doctor plaintiffs and their organization lack standing to challenge FDA approvals of wider access to the abortion-pill mifepristone. I imagined that the Court could write a "Christmas tree of an opinion" with something for everyone except Justice Alito--who would consider anything other than full-scale Gilead to be the equivalent of a lump of coal. Yesterday's unanimous opinion by Justice Kavanaugh mostly vindicates my assessment. That doesn't exactly make me Nostradamus because I was hardly alone in reading the oral argument tea leaves in the way I did. In today's essay, I want to focus not only on how the actual opinion was similar to what I predicted but also on two ways in which it was different: (1) Justice Thomas got one-and-a-half presents, not just the one I thought Santa wou

Absolute Presidential Power that Is Not (Directly) Deadly

Over the last few years, many non-MAGA news outlets finally caught up with the reality that Donald Trump represents an existential threat to the rule of law.  There is much to be said about every aspect of that threat, and of course news outlets are focused on the most lurid -- but to be clear, absolutely real -- possibilities.  These include mass round-ups of millions of immigrants (and people mistaken for immigrants) into concentration camps, prosecuting Trump's political enemies, and using the US military to attack and most likely kill protesters in the streets. Again, those threats are real.  How do we know?  There is no need to connect any dots or to translate something that Trump has said into non-euphemistic form, because these are things that Trump and his backers have openly discussed.  It was not always thus.  Back in 2009, Republicans freaked out about Michelle Obama's efforts to get people to exercise more and to eat better, with the more extreme versions of the fre

Supremely Corrupt

If you are reading this blog post, you probably have already heard about Justice Clarence Thomas's receipt of gifts and free travel worth millions of dollars from various donors. The list of such gifts is staggering. Before we get to that, however, let's discuss corruption. In McCutcheon v. FEC , the Supreme Court held that federal limits on aggregate political contributions violated the first amendment. It is a horrible decision written by Chief Justice Roberts, who said that the government can only target direct quid pro quo bribery when regulating campaign spending. Roberts pointed to nothing in text or history suggesting that the government is disabled from going after other, less direct, forms of political corruption.  Retired Judge Richard Posner was quite upset with this decision and wrote the following (while still an active judge): C hief Justice Roberts’ opinion in  McCutcheon v. Federal Election Commission   ...  in the name of free speech, further diminished Congre