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Mourning Chief Justice Roberts's 20th Anniversary Part II: Top Ten Worst Moments of the Roberts Court

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Two weeks ago, in recognition of the twentieth anniversary of John Roberts being named as the Chief Justice of the Supreme Court, I listed what I thought were the top ten worst cases of the Roberts Court. Below are the top ten worst moments of the last twenty years unrelated to the Court's decisions. These are in no particular order and with one exception include examples from justices other than the Chief. 1) Umpire-in Chief Okay, technically this happened before John Roberts was confirmed, but it did foreshadow the next two decades. At his confirmation hearing, Roberts uttered these words that will live in infamy: Judges and Justices are servants of the law, not the other way around. Judges are like umpires. Umpires don’t make the rules, they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules, but it is a limited role. Nobody ever went to a ball game to see the umpire. Judges have to have the humility to recognize that they op...
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No, He Is Still Not an Evil Genius (Just Evil)

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The US's slide into post-constitutional chaos continues.  In the midst of it all, it is especially frustrating to find that people who are not at all fans of Donald Trump habitually insist on attributing various kinds of superpowers to him.  None of those fantasies has ever been true, unless one counts "being as bigoted as a controlling minority of the American population" as a superpower.  Even so, purportedly responsible journalists and commentators continue to act as if there is something other than unbridled and unreflective malevolence at work. To some degree, this is merely more sanewashing, which I defined in a column last Fall as "an attempt to create something coherent out of utter incoherence."  There, I referenced a column by Margaret Sullivan, one of the few truly excellent journalistic critics out there, who noted " a Politico news alert that summarizes a recent Trump speech: ' Trump laid out a sweeping vision of lower taxes, higher tari...
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Can Lisa Cook Keep Her Fed Seat? That's Actually (at Least) Five Questions

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A federal statute allows the president to appoint someone to the Federal Reserve Board of Governors for a term of up to 14 years. President Biden appointed Lisa Cook to a 14-year term in 2022. Under ordinary circumstances, she would remain in that seat until 2036, but President Trump has purported to remove her, claiming that her alleged listing of two different houses as her intended primary residence in roughly contemporaneous mortgage applications was financial fraud that renders her unfit to participate in setting monetary policy. That same statute linked above does give the president the authority to remove a Fed member before the expiration of their term "for cause."  What follows? It is tempting to throw up one's hands and say simply: It depends on what five Justices of the Supreme Court want to do . That's certainly true in an ultimate sense, but the law is not completely silent on the question. Accordingly, I'll break this down through five sub-questions...
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Legalistic Cover Stories and Unchecked Dictatorial Power

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It is increasingly impossible to deny that the second Trump presidency is a no-holds-barred affair, with the United States now ruled by a regime that treats laws and especially norms as quaint vestiges of the time before America supposedly regained its greatness on January 20, 2025.  In this context, it is admittedly a bit odd to think that the country can be made great "again," because that must mean that the previous era of greatness was possible even though elections were relatively meaningful and the separation of powers was still a pillar of constitutional governance.  Whenever that previous great period was, it happened without completely casting aside the rule of law.  Why is it necessary to throw it all away now? Granted, the most likely throwback era in the minds of Donald Trump and his supporters is the 1950's, when Black people were living under the constant threat of Jim Crow-enabled lawlessness and physical brutality, while women had no legal control over the...
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Wait, Can He Actually Do That? Part 20: The Flag Burning Executive Order's Ineffective Effort to Distinguish SCOTUS Precedent

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It has been several months since my last entry in the " Wait, Can He Actually Do That?" series . That's not because President Trump has taken any time off from acting unlawfully. In fact, probably half or even more of the essays I've written for this blog and for Verdict in the intervening period have addressed legally dubious policies by Trump or his administration. But for many of those policies the real question has not been whether they were lawful but whether the administration could get away with acting unlawfully. Too often the answer has been yes--for a variety of reasons. Sometimes no one has standing to challenge the actions. In some circumstances, what Trump has done was plainly unlawful under existing precedents but then SCOTUS moved the goalpoasts. Often, even success in the courts would come too late to provide real relief and would not prevent the administration from launching a new attack. That is the logic that has led some law firms and universities ...
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Retaliatory Prosecution

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The FBI search of John Bolton's home and office was authorized by a warrant issued by a federal magistrate judge, which means that the magistrate judge found that there was probable cause to believe that the FBI would find evidence of a specific crime. From the public reporting , it appears that they were looking for evidence that Bolton unlawfully leaked or retained classified materials. However, doubts have been raised about whether the Bolton search was an ordinary law enforcement operation. Since serving as National Security Advisor for nearly a year and a half during the first Trump administration, Bolton has been and continues to be a vocal critic of Trump. Given that Trump and his underlings--not least FBI Director Kash Patel--have made no secret of their willingness to abuse the criminal justice system to exact revenge on Trump's critics and perceived enemies, many observers have understandably wondered whether the Bolton search was in retaliation for his criticisms of ...
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Should Public Schools Allow More Curricular Opt-Outs to Retain Students?

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Two months ago, in Mahmoud v. Taylor , the Supreme Court's 6-3 conservative supermajority delivered a potentially devastating blow to public schools. Justice Alito's opinion for the Court held that parents are constitutionally entitled to opt their children out of classes and activities that contradict their religious beliefs. As I wrote on this blog three days after  Mahmoud  was decided, the case is sweeping in its possible implications. Mahmoud itself involved objections to an LGBTQ+ inclusive curriculum, but parents could have religious objections to instruction in a wide range of subject matter areas, including astronomy, biology, geology, and, as Justice Sotomayor's dissent warns, much more--such as a parental objection to any materials that mention "women working outside the home" if that "conflicts with the family's religious beliefs." In my prior essay on Mahmoud , I complained that the Court's opinion gave inadequate weight to the admi...
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What Hardball Does and Doesn't Look Like (a Dorf on Law Classic)

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In the introduction to my Dorf on Law  Classic column   earlier this week  ("Banana Republic or Legalistic Lawlessness?" from February 2020), I wrote: "Later this week (or possibly early next week), I will publish an update to the column below. ...   Rather than merely linking to the earlier column and hoping that people will click and read it on the fly, I thought I would reprint it in its entirety here." I do plan to write a new column next week about what I have dubbed legalistic lawlessness, so today's Classic is a followup to that earlier column that extends the argument into December 2024.  I hope readers will re-read that column (or read it for the first time), setting the table for next week's updated argument.   What Hardball Does and Doesn't Look Like   By Neil H. Buchanan - December 17, 2024   How crazy is the world right now?  At least crazy enough that I managed to write an entire column last Thursday discuss...
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