Dorf on Law

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'...

So the government shutdown is over, and eight Senate Democrats did exactly what everyone said they should not do: break ranks and end the shutdown while getting nothing from Republicans.  As I put it in September, two weeks before the shutdown began, "the  only  thing left for Democrats now is to 'win the politics' of the shutdown."  But even though the Democrats were clearly winning, with most Americans blaming Trump and the Republicans, these eight geniuses decided that it would be better to let Republicans up off the mat. Why?  One of the defectors, New Hampshire's Jeanne Shaheen, said this: "When I talk to my constituents in New Hampshire, you know what they say to me?  They say, 'Why can't you all just work together to address the problems that are facing this country?'"  I guess if "addressing" the problems of the country means making sure that they will get worse, then good work, Senator Shaheen! To be clear, while the media...

Repeating a pattern that has become all too familiar, late last week the Roberts Court issued a per curiam order staying a lower court ruling that had temporarily halted a plainly immoral and very likely unlawful Trump administration policy. In Trump v. Orr , the Court stayed an injunction against the administration's transphobic policy requiring that new and renewed passports list the passport holder's sex as their sex assigned at birth. As Justice Jackson (joined by Justices Sotomayor and Kagan) explained in dissent, the new policy reversed 33 years of prior practice (including in the first Trump administration) whereby transgender citizens could obtain passports that accorded with their current gender identity. The federal district court granted a preliminary injunction based on the likelihood that plaintiffs who challenged the policy would prevail in their equal protection claims that the policy: (1) discriminates based on sex and therefore must satisfy, but fails to satisf...

By now, everyone who pays attention to US politics has heard some version of the immediate conventional wisdom explaining the Democrats' across-the-board romps in Tuesday's elections.  The magic formula, we have already been told a zillion times, is that Democrats wisely focused on economic issues this time. That view has not been entirely unanimous, however, even among headline writers (who are usually the laziest trend-followers one can imagine).  For example, covering the governor's race in Virginia, the US version of  The Guardian  offered this headline confirming the insta-consensus: "Historic first for Spanberger after considered campaign against Trump: Democrat becomes first female governor in Virginia’s history and placed focus on living costs and public service."  On the other hand,  The New York Times   went with this : "Spanberger Wins Virginia Governor’s Race With Forceful Anti-Trump Campaign." So which was it, a "focus on living cos...

After two and a half hours of oral argument in yesterday's tariff cases , I ended up roughly where I started. I am nearly certain that Justices Sotomayor, Kagan, and Jackson will vote to invalidate the tariffs and that Justices Thomas and Alito will vote to sustain them. I have Justice Kavanaugh as quite likely to vote to sustain them. Of the remaining three Justices, Gorsuch seems most likely to vote to invalidate, whereas Roberts and Barrett are difficult to handicap. Rather than parse the full transcript to justify or qualify those assessments, I want to use today's essay to suggest that the arguments that seemed most appealing to the seemingly undecided conservatives ultimately point to one of two possible outcomes: either the International Economic Emergency Powers Act (IEEPA) is an unconstitutional delegation of legislative power or it should be construed to afford the president less deference in application than the Justices seem to be contemplating. Justice Gorsuch was ...

Donald Trump is asserting more executive power than any President since the Civil War. He would likely not only agree with that assessment but be proud of it. As a result, our constitutional republic is in great peril. As I wrote recently: What is at stake are the twin pillars of American democracy that for so long have defined the United States and staved off tyranny: federalism and separation of powers. In the  words   of the “Father of the Constitution,” James Madison, the “accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.” Although Madison was discussing the separation of powers at the federal level, the same idea applies to federalism. As Justice Anthony Kennedy often pointed out, the founding fathers split the  “atom of sovereignty ” between the national government and the states to diff...