Dorf on Law

Constitutional law scholars have long fretted over the "countermajoritarian difficulty" (CMD) a term coined by Alexander Bickel for an old issue: The fact that, except in the extraordinarily rare case of a blatant and obvious violation of the Constitution, judicial invalidation of legislative and executive action substitutes the views of unelected judges for those of officials who are accountable to the people. Within constitutional theory, there are various responses, ranging from those that offer interpretive methods deemed legitimate in light of the CMD to those that say that the CMD is not worth worrying about. Meanwhile, I and others have previously noted that whatever one thinks of the CMD created by judicial review, its scope is not all that great, because the courts do not use the Constitution to interfere with the decisions of the political branches on such great matters as war and peace, taxation, and spending. Lately, that fact has become painfully obvious, even ...

In October 2007, when Hillary Clinton was leading in the polls for the Democratic presidential nomination, I posted " What if Hillary Clinton Wins? " here on Dorf on Law. In that post, I argued that the danger for Democrats of a possible Hillary Clinton presidency was that she would follow the pattern of her husband's presidency, regularly capitulating to the Right while being absurdly labeled as a lefty. When her policies inevitably failed, liberals would be blamed, even though it seemed certain that her policies would be anything but liberal. We are not yet six months into Barack Obama's presidency, giving us hope that early patterns can yet be changed. At this point, however, it is difficult to avoid the gnawing feeling that Obama is turning out to be exactly what I feared Hillary Clinton would be. Notwithstanding his Chief of Staff's famous dictum that we should not let "a good crisis go to waste," there is precious little evidence that the Obama...

As I discussed earlier , I share the concern of LGBT lawyers who worry that the federal court litigation now being pursued by uber-lawyers David Boies and Ted Olson to overturn California's Prop 8 could backfire, and set back the cause of same-sex marriage by a decade. Now for an update on the litigation. Last week, Federal District Judge Vaughn Walker (appointee of Pres Bush 41) issued a 3-part ruling . Part 1 is unobjectionable. Part 2 has implications beyond what Judge Walker seems to acknowledge. Part 3 is simply bizarre. 1) Judge Walker allowed the proponents of Prop 8 to intervene in the case to defend its constitutionality. That's fair. AG Jerry Brown would likely provide less than a vigorous defense, and neither the plaintiffs nor any other party objected to the sponsors' intervention. 2) Judge Walker also declined to rule on the plaintiffs' motion for a preliminary injunction. He decided instead to move expeditiously to a trial on the merits, in substant...

(Cross-posted from SAJAforum ) That's what Audil Rashid and Mian Nazish Adnan sound the alarm about in the July 4, 2009 issue of the British medical journal The Lancet , following their recent visits to camps set up to house internally displaced persons (IDPs) fleeing the conflict zone in Pakistan's North-West Frontier Province. While Americans celebrate the Independence Day weekend with barbeques and fireworks, Rashid and Adnan paint a grim picture of the crisis in Pakistan: From the very beginning it was evident that the government had underestimated the human cost of the military operation. As several camps were hastily set up to cater to the massive influx of IDPs, reports about the lack of even basic amenities in these camps began to emerge. Excessive heat (daytime temperatures soaring to 40°C and above), no electricity, food and water shortages, poor sanitation, and lack of proper health care are some of the immediate problems being faced by IDPs.... Lack of proper toil...

One of the most important features of academic life is the research sabbatical. For any professor, being able to set aside teaching temporarily to focus exclusively on one's scholarship is an opportunity to be cherished. Doing so in a new locale (or locales), interacting with scholars at different universities, makes the sabbatical that much more valuable. Of course, it is a special pleasure when one can combine these professional advantages with personal benefits. As such, I am especially fortunate to have the opportunity to spend most of the next 12 months in Ithaca, NY as a Visiting Scholar at Cornell Law School. Cornell's qualities as a scholarly community are well known to the readers of this blog. In addition, it just so happens that my closest friends (Mike Dorf and Sherry Colb) are on the faculty at Cornell Law. What luck that I would find myself here for a year! OK, maybe there was some planning that went into this . . . The business-meets-pleasure aspect of the...

I have a column that appears today on FindLaw, discussing the Supreme Court’s recent decision in Melendez-Diaz v. Massachusetts. The Court held in Melendez-Diaz that prosecutors should not have been allowed to introduce scientific certificates into evidence to prove that a substance found on the defendant was cocaine, because the analyst who certified the finding did not testify and was thus unavailable to the defendant for cross-examination. My column discusses how the Sixth Amendment Confrontation Clause has come to give rise to such a ruling and why the Court’s relatively new approach to hearsay and the Sixth Amendment may not be long for this world. One of the observations I make in my column is that the majority expresses great confidence in the result that it reaches, while the dissent (speaking for four Justices) expresses great disdain for the same. Though the column provides some quotations from the dissent, I will here give readers some more, from both sides of the fence:...

In my latest FindLaw column , I address 3 main questions posed by the Supreme Court's decision in Ricci v. DeStefano : 1) Why did the Court order judgment for the plaintiffs, rather than remanding for further proceedings in light of the new legal standard? 2) Will this Court ultimately find that Title VII's disparate impact rules are unconstitutional, as suggested by Justice Scalia in his concurrence? 3) What impact will the case have on the Sotomayor confirmation hearings? In the course of considering that last question, I call attention to the curious concurrence of Justice Alito, in which he contends that the New Haven fire dep't may not have been worried about being sued in a disparate impact case at all, but simply caving to the pressure of racial politics. I note that his characterization of the Reverend Boise Kimber resembles the character of Reverend Reginald Bacon in Tom Wolfe's Bonfire of the Vanities . Bacon famously says: "You're investing in steam ...

Lately I’ve become convinced that scaling up to attack truly massive environmental problems like climate disruption is a kind of trap. To engage such problems in institutions that are big enough (like our Congress), the necessities of making those institutions actually operate inflate your costs and complications to arresting proportions. When you consider just how unimportant "median" voters are today—and how scarce politicians who represent them are in our gerrymandered Congress—the possibilities for "public reason" seem to shrink. Beyond that political calculation, you’ll have an even harder time deciding whether going to all the trouble is worth it given the limitations inherent in law as a social institution, etc. This is perhaps just another way of restating some old political wisdom, but I think it has sobering implications for American citizens who think about confronting vast environmental problems. Waxman-Markey (WM) is my case in point. (In a commen...

Earlier this month, NBC and its affiliates marked the one-year anniversary of the untimely death of their former colleague Tim Russert, the long-time host of "Meet the Press." It seemed a bit odd even to mention such an anniversary, but I suppose that one of the perks of being in the media is that you can celebrate your friends whenever you like. When Keith Olbermann devoted an entire segment of his show to another round of over-the-top eulogies for Russert, however, this was too much. It reminded me of an extremely harsh -- but completely accurate -- take-down of Russert by Lewis Lapham in Harper's  last summer (available here ) that was mostly devoted to describing the almost comic public displays of grief over Russert's passing that were offered up by the national media and political establishments . The problem is not in grieving the death of a fellow human being, of course, but in the completely baseless claims made by Russert's eulogists that he was a st...

The Supreme Court decided all but one of the cases on its docket before adjourning for the Term. The case held over for reargument is Citizens United v. FEC . That case involves the application of campaign finance rules to a movie that was highly critical of Hillary Clinton. I discussed this Term's oral argument here . In its order setting the case for reargument, the Court has added the following question presented: "For the disposition of this case, should the Court overrule either or both Austin v. Michigan Chamber of Commerce , and a part of McConnell v. FEC , which addresses the facial validity of Section 203 of the Bipartisan Campaign Reform Act of 2002?" McConnell v. FEC was more or less gutted two Terms ago by the Court's subsequent decision in Wisconsin Right to Life v. FEC , holding that the key provision upheld on its face in McConnell was invalid as applied. The more interesting issue here is whether the Court will overrule Austin , which upheld ...