Dorf on Law

by Neil H. Buchanan   Every day that the news is not focused on the Covid-19 pandemic is a good day for Donald Trump.   Earlier this year, I wrote two columns on Dorf on Law ( here and here ) in which I argued that the Supreme Court's decisions in what had become known as the "Trump tax cases" were surprisingly but profoundly unimportant.  I conceded that the Court had done something good by not doing something terrible, which in this instance would have involved endorsing Trump's insane "absolute immunity" theory.  Otherwise, however, the cases were in fact not particularly important politically or practically. Every day that the news is not focused on the Covid-19 pandemic is a good day for Donald Trump.   In those columns, I argued that "Democrats might even be better off in a world in which Trump insists on acting like he has a lot of bad things to hide than in one where we get to see what he is hiding (even if it is truly bad)."  Well, co...

by Michael C. Dorf I am not a political strategist, but if I were, I would advise Senate Democrats not to engage at all with the merits of Judge Amy Coney Barrett as a Supreme Court nominee. Do not question her about her judicial philosophy, do not parse her record as a judge and a scholar for indications of how she would decide cases on the Supreme Court, and by all means do not ask what she believes the role of precedent in constitutional cases should be. Such inquiries have become futile in the best of circumstances, and we are currently in the worst of circumstances. Posing questions to Judge Barrett as though she were just another nominee risks normalizing her nomination. There are also reasons to think that Judge Barrett will come across on tv as much less scary to civil rights, civil liberties, and effective government than her record indicates she will be as a Justice. She's smart, highly personable, and by all appearances has led a very admirable private life. Democrats wh...

By Daniel Epps Just like everyone else interested in constitutional law (and just like many other people in America, too) I've been thinking a lot about the Supreme Court in the wake of Justice Ginsburg's death. In particular, I've been continuing to reflect on what's wrong with our current system that has led us to this crisis. I discuss some of the system's defects in this Politico  interview last week .   In the interview, I talk about two failings with our system that should be pretty well understood by readers of this blog. First, there's the democracy deficit with our electoral system, in which the Senate and the Electoral College mean that the key decisionmakers may not represent the will of the majority of American citizens. Second, life tenure means that vacancies occur at unpredictable times, meaning that some Presidents get more opportunities to appoint Justices than others. These two problems interact with each other, making the problems worse. Presi...

by Grace Brosofsky, Michael C. Dorf, and Laurence H. Tribe The Constitution’s Presidential Electors Clause of Article II, Section I empowers each state, through its legislature, to direct the “Manner” by which its representatives in the Electoral College are appointed. Since relatively early in the nineteenth century, the near-universal practice of states has been to enact legislation designating popular election as the appropriate manner. With the exception of Maine and Nebraska, which apportion their Electors to the winners of the Presidential election in each Congressional district, every state assigns its Electors to the winner of the statewide Presidential election. Given President Trump’s unprecedented suggestions that he would not accept the result of an election that he loses, the question has arisen whether he might attempt to subvert that result by exploiting an apparent loophole. Suppose that more ballots in a state are cast for Democratic nominee Joseph Biden’s slate of ele...

 By Eric Segall Justice Ruth Bader Ginsburg was a remarkable woman both personally and professionally. Way ahead of her time, she championed women’s rights and changed American history for the better. Warm, caring, and funny in her private life while also fearlessly fighting for a better and more just society as a lawyer, judge, and justice. She will be sorely missed. At this moment in America’s history, however, we should also pause to recognize that as a justice, Ginsburg was a partisan who for more than a quarter of a century voted her politics, beliefs, and values regardless of prior law. In that regard, the only difference between Justice Ginsburg and Justices Thomas and Alito, when it comes to their Supreme Court careers , is that Ginsburg did not hide her politics behind the false veneer of originalism, and that difference matters. But what matters more is recognizing that this remarkable woman, when handed largely unreviewable power for life, did what just about everyone wo...

by Neil H. Buchanan I have long been predicting that Donald Trump will stay in the White House, fully supported by the Republican Party, no matter what happens in this year's election.  Recent events have made me ever more grimly confident in that prediction.  So unless something wonderful happens -- or more accurately, unless American democracy draws the ultimate inside straight -- the Republicans will get what they have always wanted: permanent and unchallenged power, notwithstanding their extreme unpopularity. At some point soon, I will likely go back to writing columns about what to expect under a completely unbound Trump dictatorship.  Today, however, I want to ponder why the Republicans were willing to carry out this heist of the American experiment in such a blundering and obvious way.  As I will demonstrate, they could have done it much more smoothly and left themselves with a healthier country to run into the ground.  Why the lack of even a tiny bit o...

  by Michael C. Dorf In an  insightful essay Monday on Balkinization , Columbia Law Professor David Pozen dissects the terrible reasons that Republican Senators have given for why it was okay for them to hold open the seat that became vacant when Justice Scalia died in February of an election year but it's somehow imperative to fill the vacancy occasioned by Justice Ginsburg's death in September of an election year. As Professor Pozen shows, the real, operative "McConnell Rule" is revealed by the Senate Majority leader's actions: "block as many Democratic nominees and confirm as many Republican nominees as is politically feasible." I completely agree with Professor Pozen's analysis, but it raises a question: Why do McConnell and other Republican Senators even bother to lie about what they're doing, especially given how transparently unpersuasive their lies are? To be sure, we might ask the same question about Donald Trump, who often lies for no ...

by Neil H. Buchanan   For the last several years, it has become a grim, oft-repeated joke that it is impossible to keep up with the blur of awful news that rushes by us, dreary day after depressing week after soul-crushing month.  This last week seems to be both proof that it can always get worse and a demonstration that even hitting bottom would not be in any way a relief.  If this truly is as low as we go (and I doubt that it is), then that merely means that life might have fewer big shocks ahead -- but that we are stuck with the consequences of what we have already endured. We very recently were wondering whether Donald Trump's insulting of people who join the military -- and especially those who are captured or die -- would erode even a tiny bit of his political support.  We heard him admitting on tape that he has been very consciously lying about the coronavirus pandemic.  We had heard Trump's Roy Cohn projecting every Trumpian evil onto Trump's opponents,...

 By Eric Segall This post was mostly written before the death of Ruth Bader Ginsburg. The country has lost a true hero who in both her personal and professional life lived up to our highest ideals. Her litigation crusades to achieve equal rights for women changed this country forever. She will be sorely missed. I can't add anything to Mike's beautiful Saturday morning tribute . Last Friday I gave a presentation (virtually of course) at the University of Nebraska on "Confronting Originalism." I outlined a series of truths about originalism that also dispelled numerous myths about originalism. Here are some of the arguments I made.

  by Michael C. Dorf "President Trump’s nominee will receive a vote on the floor of the United States Senate." -- Majority Leader Mitch McConnell in a statement released yesterday that pivoted from gracious praise of Justice Ruth Bader Ginsburg to doublespeak about how 2020 is supposedly qualitatively different from 2016. "[T]he funeral baked meats [d]id coldly furnish forth the marriage tables." -- Hamlet (in Act I, Scene II), chafing at how soon after the death of his father the king, his mother, Queen Gertrude, remarried the new king, Hamlet's uncle Claudius. ---- It was inevitable that the news cycle would not pause to reflect on the extraordinary career and life of Justice Ruth Bader Ginsburg before turning immediately to a discussion of whether there exist at least four Republican Senators who are not utter hypocrites. Still, I might have thought that savvy-if-evil politicians like Senator McConnell would have waited at least 24 hours before announcing t...