Dorf on Law

By Mike Dorf NPR has released two excerpts of an interview that Nina Totenberg conducted with Justice Stevens over the summer, shortly after his retirement.  In the first segment, Totenberg talks to Justice Stevens about, among other things, the death penalty.  Stevens says that voting to uphold the death penalty was his one regret in his career on the Court.  More on that in a moment, but first an acknowledgment of the obvious: Even at 90, Stevens could clearly continue to serve on the Court if he wanted to.  Indeed, as I'll note in my FindLaw column tomorrow, he was the one who suggested to Sen. Leahy that retired Justices be permitted to serve by designation when a colleague is recused. Now a comment on the Stevens take on the death penalty.  Justice Stevens had not yet joined the Court in 1972 when a majority invalidated the then-existing death penalty in Furman v. Georgia .   In 1976, Potter Stewart,  Lewis Powell, and Stevens jointly authore...

By Mike Dorf Today is the first Monday in October, and thus the start of a new Supreme Court Term.  I'd blog about one of the cases scheduled for oral argument today but frankly, I have nothing especially valuable to say about how to calculate projected disposable income for bankruptcy purposes or sentencing under 18 U.S.S. sec. 924(c)--the issues on tap . No doubt I'll opine about protests at or near funerals in connection with Wednesday's oral argument in Snyder v. Phelps .  But now for something completely different.  Having just read Jonathan Franzen's latest book, Freedom , I thought I'd record a thought on an issue the book raises: population growth. First, however, I'll add my voice to the chorus of those who have praised Freedom as a spectacular novel.  Like The Corrections , Freedom  accomplishes something that, in my view, is unsurpassed in the fiction of anyone writing in the last thirty years--excepting only Tom Wolfe: Franzen catches the spirit ...

-- Posted by Neil H. Buchanan (from Prato, Italy) I have been in Italy for the past four days, attending a conference on globalization sponsored by Monash University, an Australian institution with a campus in Prato. I have not had an opportunity to see much of the country, but I did listen to a very interesting presentation by the sole Italian scholar in attendance at the conference. (The line-up: one Brit, one American, one Italian, one Canadian, one Malay, and 12 Aussies. I now know a lot more about Australian politics and policy than I did a week ago.) In his presentation, the Italian scholar described a policy that the national legislature adopted over the summer, in response to the ongoing recession. While the details were unfamiliar to me, it became increasingly clear as the discussion continued that this was simply a variation on the standard prescription of more tax cuts for businesses to solve all problems. It seems no more likely to succeed than similar policies adopte...

By Mike Dorf Yesterday I gave the Keynote Address at the annual luncheon of the Boston Bar Ass'n .  My remarks were too long to reproduce fully in a blog entry, but I'll nonetheless try to summarize the high points.  The title of my speech was "The Cross-Ideological Consensus on Freedom of Speech."  Here's the condensed version. Consider three Free Speech Cases the Supreme Court decided in the term that ended this past June:   1) In Holder v. Humanitarian Law Project  the Court split on ideological lines (except for Stevens joining the conservatives) to uphold the application of the "material aid" law to people who wanted to assist the non-violent wings of listed terrorist organizations by training them in peaceful conflict resolution. 2) In  Citizens United v. FEC the Court split 5-4 on ideological grounds to invalidate the ban on corporate independent expenditures for "campaign speech" during the statutorily defined election period. 3) ...

By Mike Dorf As I have previously explained ( here and here ), under the most straightforward reading of existing Commerce Clause precedents, the individual mandate in the health-care reform law is valid.  To my mind, the fact that Congress has not previously directly required anyone to participate in a market transaction is simply beside the point, given the clear economic impact of failing to purchase health insurance.  And that's to say nothing of the law's sustainability as an exercise of the taxing power. Nonetheless, I have come to think that just as in the run-up to Bush v. Gore , I am underestimating the framing power of politics.  Then, I thought that given the traditional deference shown to state courts on matters of state law, the SCOTUS wouldn't take the case.  I didn't reckon with the possibility that ideological and partisan druthers would frame the issue for conservative Justices quite differently than for liberal Justices.  (Note first that...

By Mike Dorf Last week I was a panelist on an ABA-sponsored "webinar" discussing last Term's "crush video" case, U.S. v. Stevens , and its aftermath.  My assigned task during the affirmative presentations was to describe the Supreme Court's First Amendment holding in the case, but during the Q&A, I raised the issue that has concerned me about the Stevens case since the Court first granted cert: Whether the law banning depictions of deviant animal cruelty was counter-productive to the wellbeing of non-human animals because it permits people who enjoy the fruits of animal suffering and death by eating and wearing them to feel as though they are better than people who derive sexual or other pleasure from observing photos and videos of such suffering and death.  (I have blogged about this issue before, and Sherry Colb wrote a FindLaw column on the topic.)  We had a lively and respectful exchange on the efficacy of the law at issue in Stevens and about ...

-- Posted by Neil H. Buchanan (from London) Professor Dorf apparently viewed my departure from the country as an opportunity to turn his attention to economics, posting some very useful thoughts last Thursday about the new national obsession with government spending. I have very mixed feelings about how knowledgeable Mike -- a con law scholar -- is about Keynesianism, given how little con law I know. (My reference to Griswold last week hardly counts.) Need I ever return to the U.S.? Maybe. In the extremely good discussion of Mike's post on the comments board, a question arose about the value of wasteful (and even destructive) government spending. Even someone with a rather sophisticated understanding of Keynesian policy recommendations during a recession could understandably -- though incorrectly -- conclude that Keynes was indifferent to the content of the spending that a government might undertake to bring the economy back to full employment. Indeed, the scorn among some...

By Mike Dorf On Wednesday, I was the commentator on a Federalist Society-sponsored presentation by libertarian lawyer  Clark Neily at Cornell Law School.  Mr. Neily argued for more robust judicial scrutiny of all laws that infringe liberty, regardless of whether they infringe fundamental rights.  I expressed skepticism about the possibility of cabining this approach, given the experience of the Lochner era.  All in all, it was a fun, respectful exchange. Here I want to comment on a point Mr. Neily made in passing.  Although his core argument focused on rights, he also expressed the view that the Supreme Court's acquiescence in the growth of the federal government called into question the notion of a government of enumerated powers.  The same argument was made by Thomas Jefferson in opposing the Bank of the United States during the Administration of George Washington.   Jefferson lost internally.  Once in office, the Jeffersonians permitted ...

By Mike Dorf On last Thursday's Wall Street Journal op-ed page, Daniel Henninger penned a piece titled "It's the Spending Stupid," in which he touted that slogan as a sign of the times.  And sure enough, that very day I saw two bumper stickers with that slogan on them.  According to Henninger, tea partiers and Americans more broadly have been concerned for a long time about " the federal-spending balloon," with the concern boiling into rage quite recently.  I think Henninger is probably right--at least superficially--about most of the tea partiers but quite wrong about the broader point. Here's the heart of Henninger's case: The most important and startling number in American politics today is Congress's approval rating: 23%. This is a no-confidence vote. The second branch of government is losing the country. Surely it's about the spending. What else? That Congress hasn't spent enough? In a word: Yes.  When it mattered most, Congr...

By Mike Dorf In my latest FindLaw column I consider the constitutionality of a bill sponsored by Sen. Arlen Specter that would require the Supreme Court to permit television cameras in the court except in those rare instances in which doing so would violate the due process rights of a party.  As I explain in the column, although the bill raises some serious issues of separation of powers, those issues are probably best resolved in favor of the law's validity.  Nonetheless, on grounds of inter-branch comity, I conclude that Congress should not enact the law.  Here I want to address the question of what procedure the Court ought to use to resolve this and related questions of courtroom procedure and etiquette. As I say in the column, on the merits I think this is a relatively easy question: The Court should open itself to tv camera coverage.  The concern that the dynamic of oral argument would change seems to me overblown and, in any event, outweighed by the publi...