Dorf on Law

I'll start by giving credit where credit is due. In Mahmoud v. Taylor , Justice Alito, writing for the majority, rejects the defendant school board's contention (echoed by the dissent) that the LGBTQ+-inclusive curriculum merely "exposes" students to ideas that were inconsistent with the religious views of their parents. A fair assessment of the books and the guidance makes clear that the school board aims to instruct students on the importance of treating LGBTQ+ persons with respect and dignity. And now I'm done giving Justice Alito and the majority credit. They get one thing right. And it wasn't even an important thing, as Justice Alito himself says that it's not essential to distinguish between exposure and instruction, as either could substantially burden religion. Meanwhile, as I'll now explain, apart from getting that one apparently unimportant thing right, the majority got the important stuff wrong. Let's start with the biggest thing. The op...

Much will no doubt be written (perhaps including more thoughts from me) about today's SCOTUS ruling in Trump v. CASA . Headline writers predictably will--indeed already have--tell the public that the Supreme Court expressed a favorable view on the merits of the Trump administration's executive order restricting birthright citizenship, even though the Court specifically disclaims any view on the merits. In today's column, I raise two questions: (1) Is the decision ideological? (Answer: yes). (2) Is the decision practically important, given the workaround suggested in Justice Kavanaugh's concurrence? (Answer: probably yes, given doubts about whether the workaround will work.) (1) There will be some gnashing of teeth over whether the decision is ideologically based. It's true that the upshot of the ruling is to limit the ability of federal district courts to constrain the Trump administration, but as the majority opinion of Justice Barrett and the concurrences illustra...

In my  Dorf on Law   column earlier this week announcing my very recent move to Ireland, I wrote: "Settling in will of course take some more time, but I wanted to get back to my writing as soon as possible."  I concede, however, that I am in a bit of a honeymoon period.  Any ability to write my usual steely-eyed analyses of the world's horrors is thus a bit undercut by a personal sense of calm and optimism. Even so, I will offer below some policy-specific thoughts via a Dorf on Law  Classic (rerun) that begins with an Irish reference.  But first, I hereby offer a public confession.  In an email earlier today to a frequent reader, I wrote this: As I settle into my expatriate life, my shameful secrets are: (1) I gave up on U2 when they collaborated with Apple to force an (undeletable) album onto everyone’s iPhones in 2014 [in what became known as the time that " U2 and Apple Spammed the World ]." (2) I no longer like Guinness, and (3) River Dance creeps...

My latest Verdict column went live on Monday morning. In it, I offered faint praise and substantial criticism for the Supreme Court's decision in United States v. Skrmetti , which upholds Tennessee's ban on gender-affirming care for minors.   The praise is for the civil tone of the majority opinion by Chief Justice Roberts. Unlike many Republican politicians (especially President Trump) and even some judges, Chief Justice Roberts refers to transgender persons respectfully. The criticism is for what I regard as a highly formalistic approach to identifying sex discrimination and discrimination based on transgender status and for sanitizing transphobia by taking too seriously the state's profession of concern for the health and informed consent of trans minors. My column also criticizes the three Justices (Thomas, Alito, and Barrett) who write separately to say that they would hold that discrimination based on transgender status does not trigger heightened scrutiny, either as...

N.B. Today's essay is cross-posted at the Knight Institute blog . There, readers will also find an essay by eight members of the Columbia Law School faculty making many similar points. I composed my essay over the weekend independently and only became aware of the Columbia faculty essay after submitting it to the Knight Institute. Because I have great respect for the authors of the Columbia faculty essay, I am pleased that we reach the same conclusions for pretty much the same reasons.  ------------------ Last week, Federal District Judge Mary Kay Vyskocil dismissed the lawsuit filed by the Association of American University Professors (AAUP) and American Federation of Teachers (of which the former is a subsidiary) that sought to restore funding to Columbia University on the ground that President Trump’s withholding of federal grant money was unconstitutional retaliation for unpopular speech on Columbia’s campus and violated federal statutory requirements for funding cutoffs for f...

I took last week off from posting content here on Dorf on Law .  Why?  Because I have accepted an appointment as Visiting Full Professor at the Sutherland School of Law at University College Dublin  (UCD) in Ireland, where I was a Sutherland Fellow this past October.  A week ago, I left Toronto and moved to Dublin.  Settling in will of course take some more time, but I wanted to get back to my writing as soon as possible.  Here, I will offer some thoughts on this latest of my lateral moves and discuss some recent controversies in higher education in the United States. Upon hearing that my move to Ireland was in the works, a friend commented wryly: "I'm sure your Scottish forebears are rolling over in their graves."  Quite so.  After all, I am not merely of Scottish descent but am the son of a minister of the Presbyterian Church (one branch of which is the Church of Scotland) whose first name was Calvin  and who held a Ph.D. in theology from ...

For decades, I have argued that the United States Supreme Court has over-protected speech at the expense of other important values. Whether it be allowing the wealthy to control our elections because "money is speech," defining "true threats" much too narrowly , or pretending that mandatory public sector union dues are forbidden  by the First Amendment as compelled speech, our justices since the middle of the 20th century have zealously guarded the right of people to injure others through the spoken and written word far more than any other country in world history. Of course, free speech is crucial to any free nation. But there are other important values, such as equality and democracy, that judges must protect as well. But not here, not really. On Saturday morning, the New York Times ran a story about a student at the University of Florida, in a class taught by a federal judge, who won a best paper award for arguing that "We the People"  includes only w...

This will be my third and final rerun for the week, but, as with the other two, it comes with a preface based on current events. On February 11, I published "Wait, Can He Actually Do That? Part 5: Transgender Athletes Under Title IX," in which I described and critiqued President Trump's Executive Order  banning transgender girls and women from participating in girls' and women's sports at federally funded educational institutions, ostensibly under the authority of Title IX. I have reproduced that essay below. But first, there's an update in the ongoing backlash against trans rights. Yesterday, in United States v. Skrmetti ,   the Supreme Court, by a 6-3 vote on ideological lines, upheld Tennessee's ban on gender-affirming care (puberty blockers and hormones) for minors against an equal protection challenge. In principle, the case does not have direct implications for the interpretation of Title IX. Indeed, the Court goes out of its way to say that it need...