Dorf on Law

By Eric Segall Yesterday, I participated in the New York Times’ Room for Debate with Professors Garrett Epps and Kermit Roosevelt, both of whom I deeply admire. The topic was the pros and cons of the four-four evenly divided (among liberals and conservatives) Supreme Court.  Over the last month, I have repeatedly written that there are more benefits to the current state of affairs than many might think. The consequences of the deadlock are that 1) the Justices have to try and find consensus and common ground in hard cases as opposed to Justice Kennedy (or maybe Garland) getting to decide; 2) a majority of Justices can’t just impose a partisan political agenda (think Roberts and voting rights) on the rest of us; 3) four-four ties leave hard issues to well over one hundred lower court judges who are far more diverse than the Justices educationally, geographically, and politically; and 4) if national uniformity is truly important in an economic planning kind of way, the Justi...

By Michael C. Dorf Chief Justice Roberts was a law clerk for the great Judge Henry Friendly and is fond of invoking his former boss for a standard proposition of judicial restraint: If it's not necessary to decide an issue to resolve a case, then it's necessary not  to decide that issue . It is not always clear that Roberts means this. Although I have no doubt that as a matter of tone the Chief Justice prefers a Court that is restrained and perceived as apolitical, he has certainly authored and joined opinions that could be said to reach out to decide controversial questions. But if we are to take Roberts at his word, he should be delighted with the Court's current 8-justice configuration, which appears to be leading the Court to avoid deciding important issues. Obviously, when the Court splits 4-4 and affirms by an equal division it decides nothing as a matter of precedent. But sometimes even unanimous action has an indecisive character, as in Monday's non-decision...

by Sherry F. Colb In my Verdict column for this week , I discuss  Utah v. Strieff , a Fourth Amendment case about the reach of the exclusionary rule.  In Strieff , a police officer admittedly violated the Fourth Amendment when he stopped a pedestrian without reasonable suspicion.  After asking for identification, the officer called dispatch and learned that there was an outstanding arrest warrant for the man he had illegally stopped.  The officer went on to arrest the man and search him incident to that arrest (an ordinarily valid move), and the search turned up evidence of drugs and drug paraphernalia.  The issue presented to the Supreme Court is whether the evidence should have been ruled inadmissible fruit of the poisonous tree, the unreasonable stop. In my column, I discuss the different ways in which the Court might think about the case, depending upon whether it wishes to continue its increasingly hostile stance toward exclusion or whether it prefers t...

by Neil H. Buchanan I am on an extended trip to Australia and New Zealand, where I have been speaking to audiences of various sizes and compositions about the U.S. presidential election.  (Interest is high, to say the least.)  Such a long trip, of course, also allows me to observe various aspects of these other countries' economies.  Although this is my fourth trip to the Antipodes , I am still fascinated by the fact that there are countries in which no workers' livelihoods apparently depend on how much money customers choose to give them in tips. Taking a step back from the tipping issue, it is still shocking to be reminded that there are people in the United States who work full-time yet who still live in poverty.  That anyone should play by the rules and not be able to live above the poverty level ought to be unthinkable.  If there were to be a sensible explanation to this nonsensical reality, it ought to be that there are some people who are working in ...

By Eric Segall Regular readers of this blog might know that I frequently cite the work of Professor Mark Tushnet of Harvard Law School to support my legal realist views of the Supreme Court. Mark’s iconic statement that “law is politics all the way down” neatly explains why law is not a special or unique discipline, while his book “Taking The Constitution Away from the Courts” persuasively describes the benefits of dramatically limiting the role of judicial review in our political system. For over three decades, Mark has been a leading progressive voice in the legal academy. Additionally, early in my career, Mark was a valuable mentor to me, providing sage advice and constructive criticism on numerous projects. Erwin Chemerinsky and I have co-authored several pieces together and agree most of the time on politics and law. His book last year, “The Case Against the Supreme Court” elegantly described the evils the Justices have consistently brought down upon us over the last two ce...

by Neil H. Buchanan The Great Donald Trump "Did I Say That?" Tour continues on its merry way.  This past October, I wrote a Verdict column in which I refused even to describe Trump's musings about taxes as a "plan" or a "proposal," because what he has said is even less specific than Paul Ryan's magic-asterisk-filled budget plans .  And sure enough, Trump has recently been saying that rather than sticking to his original suggestions, he simply plans to negotiate about how to change the tax system.  Presumably, the result would be beautiful, or yuge, or something. A few things in Trump's grab-bag of tax ideas sounded a bit liberal, as he actually talked about raising taxes on the rich.  When that started to cause problems among Republicans, Trump did what he always seems to do: He changed his mind and shifted course.  Or, as one headline put it: " Donald Trump’s Plan to Raise Taxes on Rich: Just Kidding ."  Telling it like it is c...

by Michael Dorf Perhaps because I'm immersed in grading Federal Courts exams, the news that North Carolina and the United States sued each other on Monday led me to ponder procedural rather than simply substantive questions in the dispute. In particular, given that two mirror-image lawsuits were filed on the same day, which one takes priority? And why does it matter? Let's begin with a recap of the filings. First, the Governor and Secretary of the Dep't of Public Safety in North Carolina sued the U.S., the federal Dep't of Justice, the Attorney General of the U.S., and the Principal Deputy Assistant AG. The complaint in what I'll call the "NC lawsuit" is here . It alleges that North Carolina's HB2--which, among other things, requires transgender persons using sex-segregated public restrooms to use the room that corresponds to their at-birth biological sex rather than their gender identity--does not violate federal law. In particular, North Carolina...

by Neil H. Buchanan Last week, Donald Trump offered some casual comments about the federal debt that amounted to an announcement that he would simply repudiate all or part of the federal debt.  The King of Bankruptcy announced that, as President, he would tell the government's creditors to accept pennies on the dollar, just like those chumps who loaned money to Trump's failed businesses over the years.  One of the most respected business/economics reporters for The New York Times wrote an article last week describing Trump's shockingly uninformed comments, and all hell broke loose among those who know even a tiny bit about the federal debt. Now, some people might imagine that Trump would live up to his false tough-guy image and refuse to admit error.  In fact, however, that has never been Trump's modus operandi .  Even on his most famously bull-headed comments, he has actually been quite squishy.  His comments about criminally prosecuting women who seek ab...

by Michael Dorf In my most recent Verdict column --published last Wednesday and then  re-published in  Newsweek --I consider a standard objection to a point made by Justice Breyer in his dissent last SCOTUS Term in Glossip v. Gross and reiterated last week in his dissent from denial of certiorari in Boyer v. Davis . In both places, Justice Breyer argued that one reason to conclude that the death penalty is unconstitutional is what has sometimes been called the "death row phenomenon": the condemned lives on death row in social isolation and miserable conditions (even relative to other prisoners) for decades. In other words, long delay between sentencing (not to mention the offense) and execution renders the death penalty unconstitutional. One response by many death penalty supporters, including the late Justice Scalia in his concurrence in Glossip , is a kind of estoppel: Because the delays are mostly the result of complex doctrines invented by liberal opponents ...

by Neil H. Buchanan My trip to Australia and New Zealand is in full swing, which means that the time available for blogging is more limited than I would prefer.  Even so, I will make a few observations here about a few interesting things that I have seen so far. Every time I travel abroad, I am stunned by the superiority of other countries' public infrastructure, compared to the U.S.  At home, I am dependent on the Washington Metro, but I am becoming genuinely scared to ride those trains.  Just in the last few days, as I have been riding on Melbourne's clean and extensive tram, train, and bus systems, The New York Times published an article describing a report from the National Transportation Safety Board (NTSB), which concluded that the D.C. Metro system was "making 'little or no progress' toward instituting a culture of safety," even after a fire-related death (along with 91 injuries in the same incident) on a Metro train last year, and several years ...