Dorf on Law

by Michael Dorf State government lawyers defending state bans on same-sex marriage in the federal appeals courts have recently added a new argument to their arsenal. Last month's Supreme Court decision in Schuette v. Coalition to Defend Affirmative Action , they say, demonstrates the importance of leaving controversial social policy questions to state legislatures. This new argument can be found in the government's  reply brief in the Virginia case, as well as in a  supplemental letter in the Utah  case. Here I'll explain why this argument is misguided. In my prior blog post on Schuette , I described the majority opinion as a paean to the positive liberty of citizens to make their own decisions about race-based affirmative action. The opinion speaks in general terms. Here's the rhetorical high note: Were the Court to rule that the question addressed by Michigan voters is too sensitive or complex to be within the grasp of the electorate; or that the policies at is...

by Michael Dorf As promised yesterday , this is my second post on last week's SCOTUS ruling in  Town of Greece v. Galloway . Here I'll focus on the concurrence by Justice Thomas (which Justice Scalia joined in part, but not in the part on which I want to focus). In addition to joining Justice Kennedy's majority opinion, Justice Thomas offers an alternative ground for the holding: In his view, the Establishment Clause is a federalism provision, rather than a protection for an individual right, and thus it is not incorporated against the states (and their subdivisions, like towns) via the Fourteenth Amendment. He repeats the core of an argument that he articulated at greater length in a concurrence in Elk Grove Unified School Dist. v. Newdow  (the pledge of allegiance case) in 2004. Here I'd like to unpack Justice Thomas's view of the Establishment Clause and point to one important way in which it is in tension with his view of the Second Amendment. Here's Jus...

By Michael Dorf This will be my first post on last week's SCOTUS ruling in Town of Greece v. Galloway . I realize I'm a bit late to the party, so I'll try to make points that I haven't seen elsewhere on the internets. Today's post will focus on nonsectarianism and my next Town of Greece post (tomorrow, absent breaking news) will focus on an argument made by Justice Thomas for unincorporating the Establishment Clause (so that it would limit the federal government but not the states). As readers undoubtedly are aware, in Town of Greece , the SCOTUS upheld the practice of prayers before town board meetings in the Town of Greece (near Rochester, NY). Although the case was decided by a 5-4 margin, there was actually a fair bit of agreement among all nine Justices, which led me to tweet the following the day the case was handed down: Despite 5/4 split in Greece v Galloway, all 9 say clergy may (sometimes) recite sectarian prayers at govt meetings. No Jeffersonians h...

-- Posted by Neil H. Buchanan In a series of recent posts ( here , here , here , and here ), I have explored a debate that emerged recently between "orthodox left" economists and "heterodox left" economists.  The former group's most recognizable practitioner is Paul Krugman, and it includes pretty much every economist who might have had any connection to a Democratic politician in the U.S. in the post-WWII period -- Larry Summers, Bob Solow, Janet Yellen, and so on.  (Prior to roughly 2000, even some Republican economic advisors could reasonably have been called "orthodox left" in the sense that I am using that term here.  Summers once served in the Reagan Administration, for example.)  The heterodox left has been almost completely marginalized, not just by people on the right, but as I discussed yesterday, very much by the orthodox left.  The most recognizable name among the heterodox is probably James K. Galbraith, who is an excellent economist, bu...

-- Posted by Neil H. Buchanan My new Verdict column mocks the armchair psychologizing that passes for analysis by some conservative commentators regarding Thomas Piketty's new book.  Drawing from recent postings from the two self-identified conservatives on the NYT op-ed page, I note that they are using the Piketty phenomenon as another excuse to claim that liberals in America are really nothing more than a bunch of educated professional hypocrites who are jealous of people with more money and power. In a way, one has to feel sorry for people like Brooks and Douthat.  They are clearly unequipped to deal with Piketty's arguments, but they are very good at changing the subject to point fingers at people they dislike.  Just for fun, I thought that I would use the column to engage in a little bit of their bastardized psychoanalysis, showing that it can be turned around and used to explain what they themselves are doing.  And guess what?  It is possible (in fac...

by Michael Dorf My latest Verdict column discusses the legal and quasi-legal issues presented by the NBA's disciplining of LA Clippers owner Donald Sterling. Picking up on an objection of Dallas Mavericks owner Mark Cuban (which he appears to have dropped), the column argues that the NBA, like other organizations, should respect the freedom of speech (even though the First Amendment does not itself bind private entities), and that severe punishment for offensive speech is, at least prima facie, problematic. I say that the NBA therefore needs some limiting principle to explain why it can banish an owner for racist remarks but can't (or at least won't) administer similarly harsh discipline to players, coaches, announcers, and owners for homophobic speech, sexist speech, etc. I'm not saying that the NBA and its partners don't administer any punishment, but big stars get forgiven, not banished for life.  Kobe Bryant was fined $100,000 for a homophobic slur and anno...

By Michael Dorf In testimony before the Senate Rules and Administration Committee last week, retired Supreme Court Justice John Paul Stevens read a brief statement in favor of campaign finance regulation and somewhat critical of the Court's case law in this area. Here I want to offer a few thoughts in reaction to one point he made and in reaction to one line of criticism of that point. The point at issue was his fourth of five points, which I'll quote here in its entirety: Fourth, while money is used to finance speech, money is not speech. Speech is only one of the activities that are financed by campaign contributions and expenditures. Those financial activities should not receive the same constitutional protection as speech itself. After all, campaign funds were used to finance the Watergate burglaries – actions that clearly were not protected by the First Amendment. Writing in the National Review , Ed Whelan criticizes this point as a non sequitur. Whelan links to a n...

by Sherry F. Colb In my column for this week , Part 2 of a 2-part series of columns, I continue my discussion of   Heien v. North Carolina , a case in which the U.S. Supreme Court recently granted review. Heien  presents the question whether a police officer who conducts a stop of a suspect, based on the officer's reasonable but mistaken interpretation of the content of the traffic law, has violated the Fourth Amendment.  I propose in my columns that the government could (and likely will) win this case even if the Court holds that basing a stop on a reasonable mistake of law violates the Fourth Amendment.  This is because the Court could announce another "good faith" exception to the Fourth Amendment exclusionary rule for objectively reasonable (but mistaken) interpretations of substantive law on the basis of which police conduct a stop. In this post, I would like to consider the use of the term "good faith" in the Supreme Court's "good faith except...

By Bob Hockett     Neil's thoughtful reflections in recent posts on a respectful debate underway between Paul Krugman and Tom Palley have me curious about what, precisely, it is that distinguishes 'orthodox' from 'heterodox' economists, hence what shifts of emphasis among economists count as changes of 'paradigm.'  This curiosity stems from three puzzles that the debate as recounted by Neil tends to raise - at least to my mind.        The first puzzle is the absence of any reference to Irving Fisher in the discussion.  The second is the absence of any reference to Keynes' view of the shape of the marginal propensity to consume (MPC) curve in the discussion.  And the third is the absence of any reference to Keynesian/Knightian uncertainty as distinguished from risk in the discussion.  I'll explain why I find these absences puzzling, and why the puzzles they raise feed...

by Michael Dorf On Monday, May 19 at 1 pm, my colleague Aziz Rana and I will be conducting a one-hour conversation on Schuette v. Coalition to Defend Affirmative Action , courtesy of the Practicing Law Institute.  Listening from your desk (whether or not you ask a question for the Q&A portion at the end) will earn you CLE credit. How cool is that?! Registration is free, but you do need to sign up in advance. You can do so here . Here's the official announcement: Schuette v. Coalition to Defend Affirmative Action  and the Roberts Court’s Vision of a Post-Racial America May 19, 2014  1-2pm ET In April, the United States Supreme Court rejected a constitutional challenge to Michigan’s statewide ban on race and sex-based affirmative action. Although the vote was 6-2, the ruling produced no majority opinion for the Court. The plurality opinion repudiated the reasoning, but not the results, of an earlier line of decisions that had forbidden states from transferring a...