Dorf on Law

by Michael Dorf I entered law school in the fall of 1987, just after Justice Scalia had completed his first Term on the Court. I felt his presence constantly in my study of and work in constitutional law over the last nearly-30 years. I'll say a few brief words about his enormous legacy and then add a personal remembrance. I have little doubt that Justice Scalia will be remembered chiefly for moving the conversation about statutory interpretation--in the direction of textualism--and constitutional interpretation--towards originalism. I have almost always found myself on the other side of these debates, but I nonetheless appreciate the magnitude of his influence. He redefined both fields. I also think that Justice Scalia will be remembered as one of the Supreme Court's great prose stylists. It's easy to focus on his provocations ("argle bargle", "kulturkampf", "jiggery-pokery"), but doing so obscures the clarity and sheer interestingness o...

By Anil Kalhan In an essay published earlier this week , Prof. Michael Kagan expresses concern that “one aspect” of the Obama administration’s executive actions on immigration might be vulnerable when the Supreme Court adjudicates United States v. Texas later this year. In particular, Kagan worries that the plaintiffs might “have a valid point” when they assert that the administration’s initiatives—Deferred Action for Parents of Americans and Lawful Permanent Residents and its predecessor, Deferred Action for Childhood Arrivals—improperly purport “to make lawful something that Congress has made unlawful.” Kagan’s concern rests principally—and possibly in its entirety—on a stray line in the memorandum issued by Homeland Security Secretary Jeh Johnson to establish DAPA and expand DACA , which states that “deferred action ... means that, for a specified period of time, an individual is permitted to be lawfully present in the United States ” (emphasis added). Kagan is likely co...

by Neil H. Buchanan In my new Ver dict column, I ask: " Republicans Will Not Seriously Try to Sell Marco Rubio as a Moderate, Will They? "  In some ways, the column is a companion piece to my various columns and Dorf on Law posts regarding the extremism of the modern Republican Party.  In December 2015, for example, I wrote a series of three Dorf on Law posts in which I puzzled over the thinking of self-described moderate Republican voters.  (The final post, with links to the earlier posts, is here .)  Today's column, however, looks not at what voters are thinking but at the actual substance of Rubio's policy positions. Those positions are, of course, extreme by any measure.  Even though I allowed myself to go on for 2000 words in that column, I was only able to scratch the surface of Rubio's extremism.  I mentioned his views on abortion, taxes (even more extreme than the rest of his party, which is saying something), immigration (a flirtation with mo...

By Eric Segall Shortly before the 1986-87 Supreme Court term began, Justice Byron White, who had been on the Supreme Court for twenty-five years, came to work on the weekend and, with the help of his law clerks, destroyed many of his official work files. According to White’s biographer, they bought a shredding machine for that specific purpose. Among the files lost forever were a few labeled “ Miranda v. Arizona,” the landmark Supreme Court case where the Justices held that people accused of crimes have “the right to remain silent.” One of White’s law clerks at the time allegedly remarked “I couldn’t believe how much history was going down the chute.” Supreme Court Justices are public employees who make public decisions and are paid out of public funds. Yet, there are no rules governing the maintenance, destruction, or disclosure of their official papers and records. Whereas the President’s and Vice-President’s files are subject to detailed recording and safekeeping r...

By Eric Segall This third installment of my “Invisible Justices” blog posts concerns the rules (or more accurately lack thereof) governing the recusal and ethics practices of Supreme Court Justices. Our nine most important judges work under very different rules than all other federal judges. A. Recusal The law of recusal is essential for the rule of law to function effectively. We expect judges resolving cases to be impartial and unbiased. This age-old idea of judicial fairness can be traced all the way back to Roman times. Without fair judges, there can be no justice. Federal law requires judges to recuse themselves from deciding cases when they (or immediate family members) have a financial or other personal interest in the case, when they have previously expressed their views on the outcome of the case, or when they previously served as a lawyer on the case in an official capacity. These requirements are a subset of the first section of the recusal statute, which i...

By Eric Segall Every year the Supreme Court of the United States receives over 7,500 requests from litigants who have lost their lawsuits in the lower courts and urge reversal of those decisions. Lawyers spend thousands of hours working on briefs supporting those requests, and the parties pay those lawyers significant amounts of money. In recent years, the Court has granted approximately seventy-five to eighty of those requests per year. These requests come to the Court through the mysterious petition for a “writ of certiorari.” The decision whether to grant or deny a certiorari petition is one of the most important decisions the Justices have to make. Which cases the Court deems worthy to review may dictate national policy across the spectrum of important social, legal, educational, political, and economic issues. Yet, although there are instructions concerning the timing and structure of the briefs that need to be submitted, and a few vague considerations the Court may take...

By Eric Segall This Thursday, the Georgia State Law Review will host a comprehensive symposium on Supreme Court Transparency called “Invisible Justices.” Cameras, recusal, ethics rules the Justices’ papers, and the mysterious writ of certiorari are all on the agenda. In addition to co-moderating what should be a fascinating lunch time discussion with Adam Liptak, Robert Barnes, and Dahlia Lithwick, I also will open the day with a brief talk discussing all of these transparency questions. For the next four days, I will be presenting my views here on each of these issues. Today, I start with cameras in the Court. ************************************************************************* Over two dramatic days during the last week of June, 2015, the Supreme Court handed down dramatic decisions providing gays and lesbians the right to marry in all fifty states and rejecting   the attempt by a few libertarian lawyers and law professors to gut the Affordable Care Act. During...

by Michael Dorf As Prof. Buchanan noted on Tuesday , it is still too soon to coronate Marco Rubio as the  "establishment" alternative to either the external (Trump) or internal (Cruz) hostile takeover of the Republican party. Before writing off Jeb Bush, Chris Cristie, John Kasich, or their respective superPAC sugar daddies, the notoriously fickle voters of New Hampshire must have their say, and even after that, the notion that the Party elders will quickly corral the three governors into bowing out so as to consolidate the anyone-but-Trump-or-Cruz vote behind Rubio seems fanciful, absent a decisive Rubio victory somewhere. As of late yesterday afternoon, the most reliable number cruncher, Nate Silver, gave Rubio a sixteen percent chance of winning New Hampshire--much better than one might have expected a week ago, but still hardly a lock. To be sure, if I were betting, I would put my money on Rubio to get the nomination. The I owa political market has Rubio as a little...

by Neil H. Buchanan My most recent Verdict column, published last Thursday, asks: " Have Democrats Rediscovered Unions Too Late? "  There, I note that the recent embrace of labor unions by mainstream liberals needs to be seen in the context of decades of disdain for organized labor by those same liberal elites.  This was epitomized by the anti-labor Democratic Leadership Council, which capitalized (pun intended) on liberals' panicky fear in the 1980's and 1990's about accusations of being "in the pocket of special interests."  You know, special interests like workers, women, racial and ethnic minorities, and all of the other people who had it so easy. Much of my column is devoted to a description of the economic case -- yes, an efficiency-based case -- for labor unions.  I do not claim, of course, that every labor-management interaction is going to lead to an ideal outcome, but rather that the costs imposed by unions are outweighed by the benefits t...

by Michael Dorf Whenever I write something for or appear in the general-purpose media, as opposed to the self-selecting group of people who read DoL , Verdict , or, even more self-selectingly, my academic work, I am reminded of how lucky I am to have such terrific readers. Even when readers disagree strongly with my views, comments on this blog are of high quality and on the merits. As for the broader truck ( not a series of tubes ) that is our mediaverse, let's just say that the principle of charity--whereby one reads others' statements in their best light--is not universally observed. Accordingly, after my most recent 15 seconds --in which I expressed concern about the potential chilling effect of the indictment of the makers of the anti-Planned Parenthood videos--I expected to take some heat from people who are pro-choice on abortion. And as I noted on Monday , I did. But I've also gotten some blowback in the other direction. For example, one line of criticism aros...