Dorf on Law

A few weeks ago at the Federalist Society National Convention,  Judge Patrick Bumatay of the U.S. Court of Appeals for the 9th Circuit declared that, “we are in the golden age of originalism,”  and that judges should have " unwavering adherence to the original public meaning of the Constitution, come hell or high  water." At the same convention, 5th Circuit Court of Appeals  Judge Andrew Oldham forcefully proclaimed that originalism had won and questioned whether the Federalist Society should remain a "debating society," or just declare victory because "o riginalism does yield clear and objective answers.” These judges are incorrect. Originalism has not won other than as an identity card for people who want to attain success in conservative and Republican Party political and judicial circles. In a forthcoming article, I document extensively the almost complete absence of originalism in most important Roberts Court decisions. But regardless of whether I am ri...

Earlier this week, I summarized and linked to the amicus brief on behalf of myself and nine other constitutional law scholars in the transgender athlete cases currently pending before the Supreme Court. In today's essay, I answer two questions I've received in response. Question (1):  Why is my name listed both on the cover and inside among the ten represented constitutional scholars? Answer : Because I am acting in a dual capacity. I am one of the represented amici because the brief reflects my views as a scholar on the questions it addresses. I am listed on the cover as well because I worked as a lawyer on the brief--in the sense that I played a more substantial role in the writing and editing of the brief than I typically do when I am just one of the represented scholars. To be clear, I won't join a scholars' brief if I don't agree with it, but in many such circumstances, I'll review the draft and offer a few editorial suggestions. Occasionally one of the c...

Recent headlines suggest that resistance against Trumpian totalitarianism might not be futile after all.  " ‘Unforgivable’: Trump’s ‘piggy’ insult is stoking more outrage than usual " (news analysis article in  The Guardian ).  " The Three G.O.P. Women Who Broke Trump’s Grip on Congress " (op-ed in  The New York Times ).  " Is Trump a lame duck now? " (news analysis on CNN's website).  Even two of the very worst columnists out there posted another of those dreary "Conversations" in  The Times , the sub-headline to this one notably asking: "Is [Marjorie Taylor Greene} Paving the Way to the After-Trump?" I do not recommend reading that latter piece, but the larger point is that things are looking unexpectedly dicey for Donald Trump lately.  With that in mind, and because I am not able to write something new today, I offer here a re-run of a  Verdict  column that I published less than a month into the current Trump regime.  In it, I fo...

Yesterday's  Chronicle of Higher Education  included an essay by John W. White, who is an education professor at the University of North Florida.  Titled " Secret Rules Now Govern What Can Be Taught in Florida ," White's piece describes an extreme chilling effect on higher education in the nation's third-largest state, with professors being forced by their university units to remove the words " diversity," "equity," "inclusion," and "culture" from their syllabi.  That is perhaps unsurprising, given that the Sunshine State's governor is still the man who thinks that his "war on woke" was pure genius.  But White explains that the situation is even worse than it looks. As an aside, the emptiness of the word "woke" still astounds.  A few months ago, when the right's outrage du jour was about Cracker Barrel's logo, David French wrote in his  New York Times   column : "Again, this is referring...

In January, the Supreme Court will hear oral argument in West Virginia v. B.P.J. and Little v. Hecox . The cases present the question whether state laws barring transgender female athletes from participation in girls' and women's sports violate Title IX and/or the Fourteenth Amendment's Equal Protection Clause. Lawyers for respondent Lindsey Hecox argue that her case is moot , so there is a chance that the Court will not address it on the merits, but there is no suggestion of mootness in B.P.J . , so one way or another the Court will decide at least the statutory question; if the Court rules for the state on the statutory question, it will be unable to avoid the constitutional issue and so would decide both. There are multiple possible paths to invalidation of the West Virginia ban. (1) The Court could hold that its 2020 decision in Bostock v. Clayton County is controlling. In Bostock , the Court found that discrimination based on transgender status is forbidden sex discr...

I spent Friday of last week at a one-day symposium called Revitalizing Freedom of Thought  hosted by the Cornell Law Review. There was a great slate of presenters and stimulating discussion throughout the day. I moderated and offered some of my own thoughts for a panel on Free Thought and Free Exercise, but in today's essay I want to offer an idea that grew out of remarks by USC law & philosophy professor Erin Miller during the first panel. Professor Miller's paper builds on and thus led me to revisit an idea I first encountered many years ago when I was editing the chapter on West Virginia State Board of Educ. v. Barnette  for my book Constitutional Law Stories . In Barnette , the Supreme Court invalidated a mandatory public school flag salute.   The chapter was co-authored by Professors Vincent Blasi and Seana Shiffrin; the idea that serves as my current point of departure appears in some of Professor Shiffrin's solo writings as well. It goes like this: Avoiding mi...

On Monday, the Supreme Court denied a certiorari  petition by Kim Davis, the Kentucky county clerk who refused to issue licenses to same-sex couples. In that petition, Davis had asked the Court to overrule Obergefell v. Hodges, which found a constitutional right to same-sex marriage. There was never any chance that the Court was going to grant the petition, mostly because Davis had waived the argument for reversing Obergefell  by not presenting it to the lower courts. Nonetheless, the media treated this non-event as big news. For example, Supreme Court Denies Request to Revisit Same-Sex Marriage Decision   was the banner headline at the top of  The NY Times website for much of the day.   To be fair, the actual Times article was excellent. It explained that a cert denial is not a decision on the merits, that the Court was highly unlikely to grant because of the procedural posture of the case, and that there does not appear to be much of an appetite on the current...

My column on Tuesday decried the capitulation by eight Senate Democrats that ended the government shutdown earlier this week.  Those senators are Catherine Cortez Masto, Dick Durbin, John Fetterman, Maggie Hassan, Tim Kaine, Angus King, Jackie Rosen, and Jeanne Shaheen. What do they all have in common?  I wrote this: To be clear, while the media immediately labeled this group of turncoats the Senate's "moderates," that is only accurate in the sense that these eight are among a very large group of Democratic senators who are in no way progressive.  (Well, one of the eight was John Fetterman, who is now beyond  any coherent political description.)  That is, it is not  the  Democratic moderates who caved.  Some  of them did.  Among those who did not wave the white flag were Amy Klobuchar, Chris Coons, Michael Bennet, Kirsten Gillibrand, Jeff Merkley, and Elissa Slotkin.  I could have listed dozens more, but the point is that i...

My latest Verdict column juxtaposes two recent criminal verdicts: the acquittal of Sean Dunn for throwing a Subway turkey sandwich at a Customs and Border Patrol agent sent by Donald Trump to make a show of fighting a nonexistent crime wave in the District of Columbia; and the conviction of animal rights activist Zoe Rosenberg for rescuing chickens from miserable conditions and imminent death at a slaughterhouse in Sonoma County, California. Each defendant engaged in conduct that they argued was harmless; each did so to make a political point. What explains the different results? In my column, I point to two main factors. First, the trial judge in Rosenberg's case did not allow her to present a necessity defense or evidence of the cruel conditions at the slaughterhouse, whereas the D.C. jurors were surely aware (from the video and because they live in D.C.) that Dunn was engaged in a form of protest. Second a great many D.C. residents, including jurors, would have shared Dunn'...