Dorf on Law

  By Eric Segall Here are my top ten observations (in no particular order) about the affirmative action oral arguments from Monday. 1) No one seemed to care that the University of North Carolina is only 8% Black in a state where Blacks make up 21% of the population. These facts seem important to me. 2) Justice Gorsuch really, really hates the sport of squash. If you didn't listen, don't ask. 3) No one seems to care that the Massachusetts legislature is only 2% Black while the state is 9% Black. These facts seem important to me. 4) The conservative Justices asked almost no questions about the original meaning of either the 14th Amendment or Title VI. I think we all know why. 5) The conservative Justices seemed obsessed about the statement by Justice O'Connor in Grutter v. Bollinger that she expected affirmative action to not be needed in 25 years. At my law school a few years ago, she said unequivocally she meant that sentence as aspirational and that too much has been ma...

by Michael C. Dorf The two challenges to race-based affirmative action that the Supreme Court will hear today mostly overlap, but two factors distinguish them from one another. First, a full complement of nine Justices will participate in the University of North Carolina case, while only eight Justices will participate in the Harvard case (because Justice Jackson has recused herself). Second, UNC is bound by both the Fourteenth Amendment's Equal Protection Clause and Title VI of the 1964 Civil Rights Act, whereas Harvard is bound only by Title VI. Here I want to focus on that second factor. Much of the attention to the cases (including by me in my post on Friday ) has focused on the constitutional issue, presented in only the UNC case. But the Court could avoid saying anything about the Constitution by ruling that the statute forbids race-based affirmative action. Here's the key language of Title VI : "No person in the United States shall, on the ground of race, color, or ...

  by Michael C. Dorf My latest Verdict column criticizes the recent turn to history by the SCOTUS conservative super-majority on a number of grounds, some of which will be familiar to readers who follow debates over originalism and constitutional interpretation but one of which I believe is at least somewhat novel. I explain that there is the potential for the Court either to destabilize nearly all of constitutional law or else merely shift the terms but not the substance of the debate. Here's the core of the argument: [T]he shift to a history-alone approach creates a boundary problem. If old precedents using other methods are presumptively preserved via stare decisis but new cases will be decided using the history-only method, one must have some further method for distinguishing old from new. That itself is a tall order, because lawyers typically do not ask for a brand new rule of law. Instead, they contend that the court should simply apply an existing rule or standard in a sl...

by Neil H. Buchanan We have all become accustomed to Republicans’ increasing willingness simply to lie about the world.  Claiming that Critical Race Theory is taught in the schools (which they supplement with the absurd sub-lie that kids are being indoctrinated to "hate" themselves for being White) and that abortions are performed as late as the moment of birth are only two of the most commonly repeated lies .  And of course, literally hundreds of Republican candidates for office this year refuse to admit that the 2020 election was free and fair and that their side lost. Even so, it is worth remembering that some of the more common deceptions in the Republican playbook are not direct factual misstatements but instead rely on a completely nuance-free insinuation that everything is an all-or-nothing choice.  Either you are in favor of the Iraq War or you "hate America."  Either you want to throw every brown-skinned person out of the country or you favor "open bo...

by Neil H. Buchanan Two weeks ago, when former Federal Reserve chair Ben Bernanke won this year's faux -Nobel in economics, I wrote: " How Did We Luck Out at the Fed? "  Bernanke had always been a reliably orthodox conservative economist, with all of the standard credentials that would make him an obvious choice by a Republican president to run the nation's central bank.  When George W. Bush tapped Bernanke in 2006, the choice was not depressing but certainly counted as uninspired.  My column, however, argued that Bernanke had ended up being a brilliant Fed chair. History sometimes confronts people with opportunities for greatness or catastrophic failure, and the global financial crisis of 2008-09 allowed Bernanke to prove that he was neither a hack nor an ideologue.  That was our good luck, because there are plenty of people who have served in that position (and others who were surely on Bush's short list when Bernanke was chosen) who would have made horribly wr...

By Eric Segall Last June in the Dobbs decision, the Supreme Court gave the American people a firm lecture on the importance of textualism and states' rights. The majority opinion written by Justice Alito repeatedly argued that, because the right to terminate a pregnancy is not in the Constitution's text and was not protected as an original matter in 1789 or 1868, the difficult issue of abortion should be left to the states. Justice Alito wrote the following: Abortion presents a profound moral issue on which Americans hold sharply conflicting views.... For the first 185 years after the adoption of the Constitution, each State was permitted to address this issue in accordance with the views of its citizens. Then, in 1973, this Court decided Roe v. Wade .... Even though the Constitution makes no mention of abortion, the Court held that it confers a broad right to obtain one. It did not claim that American law or the common law had ever recognized such a right. The plaintiffs and ...

by Michael C. Dorf On Thursday, Justice Barrett swiftly and rightly rejected the emergency petition by Wisconsin taxpayers challenging President Biden's student loan forgiveness plan. The petition was procedurally absurd. It claimed that the taxpayers had standing because by forgiving debts owed to the federal government, Biden would increase the federal deficit, which in turn would require more revenue to close the gap, which in turn would increase their tax liability. The main difficulty with this theory is that the Supreme Court long ago rejected the idea that taxpayers have standing qua taxpayers. (That's different from challenging a tax one claims is itself illegal, although even then, a federal statute requires one to pay the tax and then sue for a refund in the tax court.) There's an exception to the no-taxpayer-standing rule that allows for taxpayer standing to challenge direct expenditures alleged to violate the First Amendment's Establishment Clause, but in r...

by Sidney G. Tarrow When, on June 24th, the Supreme Court effectively liquidated Roe v Wade , scholars of social movements and abortion rights shook their heads – but not in disbelief. Though most of them assuredly abhorred the decision, it dovetailed neatly with the dominant theorization of the relations between courts and movements. The Court –the  theory goes – was reflecting the triumph of a “long movement” – one that went back to the reaction to Roe and its amplification of a movement reflected in rightwing organizations like the Federalist Society and the realization of conservative politicians like Ronald Reagan that they could win by embracing the agenda of the Christian Right. “You cannot support me,” Reagan famously said to his Christian conservative listeners; “But I can support you!” Echoing a point she made in a law review article she co-authored with Robert Post  a decade and a half earlier and writing in the  Washington Post  the day after  Dobbs...

by Neil H. Buchanan Yesterday, in " Support for Horrible Politicians (Herschel Walker and Liz Truss edition, with cameos by Donald Trump and Bill Clinton) ," Professor Dorf commented on the nonstop series of disqualifying scandals engulfing Republican candidate Herschel Walker -- a column that of necessity had to include an acknowledgement that those scandals might not be disqualifying enough to make Walker lose his race against Senator Raphael Warnock.  Why?  Because power.  That is, for Republicans who want to take back the Senate and exercise/abuse the power that their renewed majority status would bring, "support for Walker--or for Satan himself were he to run as a Republican--is instrumentally rational," as Dorf put it. That is surely true and interesting, and it is merely the leaping off point for the rest of yesterday's column.  Notably, in the less than 24 hours since that column was published, the second politician named in its headline -- Liz Truss -- ...

by Michael C. Dorf Why are most Georgia Republicans and the national Republican Party's leaders and donors still supporting Herschel Walker for Senate, even after learning that he is a shameless hypocrite who condemns absentee fathers and abortion even as he is an absentee father who encouraged and paid for an abortion for a woman whom he impregnated (and who had the abortion and, despite further abortion advocacy from Walker, later birthed one of those children whom Walker abandoned)? I suppose that for some, perhaps many, of the conspiracy-theory-minded rank-and-file members, it's because they disbelieve all negative news stories about their team. But many other Republicans acknowledge that Walker is a loathsome hypocrite. Still they regard his very serious personal failings as much less important than control of the Senate, where he will surely be a reliable vote for the party's agenda. Given their goals, support for Walker--or for Satan himself were he to run as a Repub...