Dorf on Law

by Neil H. Buchanan How long will our luck last?  On Tuesday, Democrats regained the majority in the House of Representatives, but even though that is exactly the outcome for which I most dearly hoped, the world seems even scarier now than it was on Monday, when I published a call to young people (and everyone else) to vote against Donald Trump and his eager enablers. On Tuesday morning, I wrote about the likely chaos that would ensue even if Democrats ended up having a good night.  Although the specifics that I offered there might not come to pass (including a prediction of a wave of Republican election challenges, although some such challenges are still possible), the big message was that Trump and his minions would not be gracious losers -- the safest prediction in the history of political commentary. So I was plenty scared before, when it was still possible that Republicans could have held the House and won other key races.  Why am I more scared now that what ...

by Sherry F. Colb In my Verdict column for this week, I talk about the meaning of the #BelieveWomen movement and what it might have to teach us about listening to people with an open and curious mind. The topic of listening to people, in turn, makes me think about the freedom of speech. In this post, I want to consider how we might best understand our free speech dilemmas.

by Neil H. Buchanan John Maynard Keynes famously wrote: "In the long run we are all dead."  Although there have been plenty of bad-faith misreadings of that quote, the correct reading is actually quite simple.  Keynes rejected the idea of causing millions of people to suffer in the here and now in the possibly vain hope that some economist's model of "long-run equilibrium" correctly predicts that such sacrifices (always to be paid by other people, of course) will pay huge dividends in the future. More to the point, we cannot make our way to the long run if we all die in the short run. In a sense, many of the arguments against Donald Trump have been arguments about a somewhat distant and uncertain future.  Thus, my Verdict column on June 2, 2016 asked: " Is This the Beginning of the End of Constitutional Democracy in the U.S.? "  My concern was not with the decades- or generations-long version of the long run that worried Keynes (although he was...

by Neil H. Buchanan As we wait to find out whether tomorrow's midterms will be the last meaningful election in American history, I will take a few moments here to consider a recent Republican absurdity that was drowned out by Donald Trump's cacophony of hatred and lies.  In one way, it is fully consistent with Trump's tactics, because it is merely another attempt to scare people by shouting "Socialism!!"  Given that the story comes from Trump's economists, however, this one is up my alley and -- viewed from the proper perspective -- very, very funny.

by Neil H. Buchanan Supposedly, the press corps has learned that bothsidesism is not a harmless exercise.  If anyone -- or at least any group with large numbers of white people -- should have newly learned what can happen when lies are not called lies and context is lost, it is American political reporters. Even after their huge assist in painting Hillary Clinton as a serial liar and spending ungodly amounts of time hyping her email servers in 2016, all the while hesitating to call Donald Trump's lies "lies," journalists have been rewarded by being called "the true enemy of the American people." But we know that old habits die hard.  One of the worst habits of the collective press's mind is the "To be fair, let's also look at what Democrats are doing wrong" approach to campaign coverage.  It would be bad enough if this were merely false equivalence (of which there is plenty), such as pretending that confronting a U.S. Senator in an eleva...

by Michael C. Dorf In an era in which every day brings shocking news, the most bizarre story of the last few days has to be the apparent plot against Robert Mueller. For those of you who may have missed it, I'll try to summarize and then provide a big-picture observation.

by Michael C. Dorf In my latest Verdict column , I note that with Justice O'Connor's announcement last week that she is withdrawing from public life, we have reached another milestone in the passing of the Reagan Court. The announcement underscores what we already knew last summer when Justice Kennedy announced his retirement. After nearly three decades in which Reagan's appointees--O'Connor, Kennedy, and Scalia--dominated the Court, a new era has begun. I argue in the column that, ironically, the real Reagan Court has now finally been born. Here I want to focus on a very different sort of issue raised by Justice O'Connor's announcement. As readers may recall, Justice O'Connor announced retirement (pending confirmation of a successor) in 2005, at a time when she could have served longer. She did so in order to be able to care for her husband, who was then himself suffering from dementia. Unfortunately, John O'Connor's condition quickly worsened t...

by Michael C. Dorf This morning an NPR reporter referred to President Trump's suggestion that he would "end birthright citizenship" by executive order as "vaporware"--a rumored product that never actually materializes, intended only to thrill his fans, much like Trump's promised impending middle class tax cut. I hope that proves correct, but these are dark times in which one should take seriously even the most outlandish suggestions. Indeed, South Carolina Senator Lindsey Graham has already raised Trump's opening bid, saying that he plans to introduce legislation accomplishing by statute what Trump proposes to accomplish by executive order. Is either path open? The short answer is no. The long answer is also no, but in a way that may prove interesting to explore.

by Michael C. Dorf  (** New as of 10/31/2018: Updated with a Postscript) A recent column by David Brooks takes Democratic candidates to task for focusing so much of their midterm election messaging on health care. It's easy to dismiss this column as just so much concern-trolling by Brooks, and in an important sense it is that. Brooks--self-appointed defender of the Republic from the evils of identity politics--thinks that the Democratic strategy will fail because Democrats can only appeal to particular identity groups one at a time and are thus missing out on an opportunity to appeal to disaffected Republicans. That's not just wrong but actually backwards. To state the obvious, everyone--regardless of race, sex, religion, gender identity, or any other identity--needs health care. The emphasis on health care reflects Democratic efforts to broaden the party's reach by appealing to voters who may have identitarian reasons of their own (such as whiteness or Evangelical Chr...

By Eric Segall Justice Clarence Thomas is our longest serving Supreme Court Justice. He first came into the public eye in October 1991, when Anita Hill accused him of sexual harassment. He dogmatically denied the claims calling his confirmation hearing a “hi-tech lynching.” He has been embroiled in controversy ever since. Many conservative Court scholars believe it is Justice Thomas, not the deceased Justice Scalia, who has been the most important driving force behind originalist decision-making. Thomas has written solo opinions challenging well-established Supreme Court doctrine in the areas of gun control, the appropriate balance between church and state, and Congress’ powers to regulate the economy, among many others important swaths of constitutional law. He has also recently been called by one liberal commentator the “most important legal thinker in America.” Dozens of Thomas’ law clerks have become federal judges, and his originalist statements about constitutional...