Dorf on Law

I was pleased and honored last week to be part of a symposium at Mercer University School of Law celebrating the tenth anniversary of Obergefell v. Hodges , the case that required states to recognize same-sex marriages. My panel included attorney Jon Davidson, who was part of the litigation team behind Obergfell,  as well as Suzanne Goldberg, a clinical law professor at Columbia Law School who has been a major advocate in the movement to gain equality for the LGBTQ community. I began my remarks by mentioning that over the last ten months when speaking at conferences or to the media, I have been unable to express any optimism about the future of our country, the Supreme Court, or the rule of law. My social media nickname, “Professor Doom and “Gloom,” has been quite fitting over this time.  But on this day, I was able to stand up and say, for the first time in a long time, that I had something semi-optimistic to report. I predicted that the Supreme Court would not overturn the h...

In my essay on this blog on Monday , I criticized Justice Alito's statement during the oral argument in Louisiana v. Callais  characterizing  Rucho v. Common Cause   as holding that political gerrymandering is constitutionally permissible. Rucho , I noted, held that constitutional challenges to political gerrymandering present nonjusticiable political questions, but this does not mean that there are no constitutional constraints on political gerrymandering. It means only that legislators--either state legislators or members of Congress if it chooses to exercise its power under Article I, Section 4 of the Constitution to modify the manner of conducting congressional elections--are the actors who have the responsibility to determine when political gerrymandering goes too far and is thus unconstitutional. I begin each class in my constitutional law course with a 5-to-10-minute segment I call "Con law in the news." On Monday during Con law in the news, we discussed the Callai...

In my two most recent Dorf on Law  columns ( here and here ), I discussed the frantic efforts by the Democratic Party's establishment -- together with the likes of  The New York Times , both on its editorial and news sides -- to kneecap Democratic nominee Zohran Mamdani in the upcoming New York mayoral election.  The party's leaders could not be bothered to find an alternative to Mamdani who is even a little bit palatable, instead falling in line behind the disgraced Andrew Cuomo, who was forced to resign as governor in 2021 when his lifelong habits of bullying, dishonesty, and misogyny at long last became impossible to ignore.  Are there truly no non-Mamdani politicians in New York who are decent human beings, bigwig Democrats? Apparently not, or at least the party's leaders seem not to think so.  In any event, my ire in those two recently columns has been focused on the fact that the party's power brokers have obviously been icing out Mamdani because he proud...

As reported yesterday by The New York Times , President Donald J. Trump has demanded that the federal government pay him $230 million to settle two administrative complaints in which he alleges that various legal actions against him by the Justice Department--including the Russia investigation during his first term, the search of his Mar-a-Lago home for the documents he unlawfully retained during the interregnum, and the January 6 investigation and indictment during that same period--were malicious and otherwise damaging. Neither the NY Times story linked above nor any other source I was able to locate explains how Trump arrived at the $230 million figure. That seems like too much to be legal fees, even if Trump had very expensive representation. By way of comparison, before his disbarment in both New York and DC , Rudy Giuliani reportedly demanded $20,000 per day for himself and his staff to represent Trump during the 2020 post-election whirlwind of litigation. Trump didn't pay t...

In my column this past Friday, " Democratic Bigwigs versus Their Own Voters, Mamdani, and the Future ," I expanded on a couple of side comments that I have recently made here on  Dorf on Law  regarding the Democratic Party establishment's latest failures.  Although there are many such unforced errors to discuss, I was referring specifically to their failure to capitalize on the enthusiasm that the prohibitive frontrunner in the New York mayoral race, Zohran Mamdani, has generated with voters there. Most tellingly, the bigwigs are frantically distancing themselves from their own party's nominee even though Mamdani-supporting New Yorkers are the most important groups of voters in the party's base -- young people, progressives, and everyone else who falls into what Howard Dean once famously called "the Democratic wing of the Democratic Party." Indeed, the people who will turn out to elect Mamdani are not just "important groups of voters in the party...

The instant consensus--with which I agree--is that last Wednesday's oral argument in Louisiana v. Callais  portends the final step in the Roberts Court's destruction of the Voting Rights Act (VRA). I won't dissect it all. Instead, I'll discuss the pivotal claims made by Justice Barrett and a couple of other lowlights. But first, a brief synopsis. Section 2 of the VRA  forbids the use of voting standards or practices that have the effect of diluting the voting strength of a racial group, regardless of whether or not the standards or practices were adopted for that purpose. That is plain from the provision's text and the legislative history that led Congress to amend Section 2 in 1982. It is also confirmed by cases like Thornburg v. Gingles   nearly forty years ago. At issue in Callais  is whether a state--acting on its own or as ordered by a court--is permitted to remedy a Section 2 violation by deliberately taking account of race to draw majority-minority electoral ...

There is one truly optimistic story on the US political scene right now, and it is the mayoral election in New York City.  With disgraced incumbent Mayor Eric Adams having been pushed aside by the party insiders who are desperately trying to install disgraced former New York Governor Andrew Cuomo in the mayor's office, the election is now a three-way race between Cuomo, the permanently disgraced Curtis Sliwa (the Republican nominee, because of course he is), and the person who easily won the Democratic primary, New York State Rep. Zohran Mamdani . According to a recent Fox News poll that was  summarized this morning in  Newsweek , Mamdani is riding a 21-point lead over Cuomo (49-28, with Sliwa at 13 percent), and Mamdani's lead is even larger among likely voters (52-28-14).  Last night's mayoral candidates' faux-debate produced no breakthrough moments for the also-rans, with Mamdani  landing this nicely delivered broadside against Cuomo: "What I don’t have in ...

Law Professor Caleb Nelson made a big splash this week by arguing that under the text and original meaning of the Constitution, Congress has the power to place limits on the President's ability to fire most executive officers. If he is right, the Roberts Court's many cases to the contrary are incorrect as an originalist matter. Additionally, most people expect the Court to reverse the landmark case known as Humphrey's Executor   later this term. That decision allowed the Congress to insulate the commissioners of the Federal Trade Commission from termination by the President absent cause. If Professor Nelson is right (and he is), that reversal will also be a mistake as an originalist matter. What makes all of this so newsworthy according to The New York Times , The New Republic , and many other outlets is that Professor Nelson is a former Justice Thomas law clerk and a self-identifying originalist whose work is often cited by the conservative justices in their opinions. Her...