Dorf on Law

By Anil Kalhan This morning, the Supreme Court will hear oral argument in United States v. Texas , the Republican lawsuit seeking to invalidate the Obama administration’s executive actions on immigration. In an essay that appears this morning in Washington Monthly , I explain why the lower court opinions in this case provide a vivid illustration what I have described elsewhere as “ judicial truthiness ,” insofar as they paint a descriptive picture of the Obama administration’s initiatives bearing little meaningful resemblance to factual and legal reality. The plaintiffs now aggressively urge the Supreme Court to embrace this false picture , which appears quite clearly in U.S. Circuit Judge Jerry Smith’s inventive but legally incorrect use of the term “ lawful presence ” to characterize the principal effect of those initiatives. I argue that the Supreme Court should reject their arguments and put an end to the politicized truthiness that has infected this litiga...

by Michael Dorf In Prof. Segall's post on Monday, he used Prof. Gil Seinfeld's Reflections of a Counterclerk as an occasion to wonder why Justice Scalia never offered a sustained originalist argument for reading the Fourteenth Amendment as entailing a principle of color-blindness. I won't re-litigate that question today. Instead, I want to make a few observations about the practice of hiring counterclerks. As a reminder, in a typical term Justice Scalia hired one liberal clerk to work with his three conservative clerks. Here is how Prof. Seinfeld describes the practice: The practice of hiring counterclerks was a reflection of the Justice’s commitment to maintaining high standards of intellectual integrity.  . . . The role of the counterclerk was, as the Justice used to say, to “keep him honest”; and the motivating intuition was that a liberal clerk was more likely than a conservative one to cry foul in the event that, in a moment of weakness, the Justice showed sign...

by Neil H. Buchanan The days before April 15 each year witness the return of a hardy perennial: tax pandering.  The usual story has a Republican politician promoting some kind of tax plan that will supposedly "reduce tax forms to the size of a postcard," or "get rid of the income tax altogether," or "tear out the tax system from its roots and starting over," or some such grandiose statement. April 15 is not the only time for anti-tax demagoguery, of course.  Last September, soon-to-fail-miserably presidential candidate Rand Paul posted a video showing him using an assault rifle to shoot a copy of the tax code (or, more likely, just a bunch of blank paper).  But the message is always the same: Vote Republican, and we'll change the whole tax code. In all events, such politicians will also toss in gratuitous attacks on the IRS.  Ted Cruz is only the most prominent Republican promising to "get rid of the IRS."  (Not every Republican, of c...

by Sidney G. Tarrow * Every once in a while a book comes along that makes me wish I had veered towards the "law" part of the Department of Public Law and Government when I got my MA at Columbia, instead of shifting towards political science. David Cole's Engines of Liberty  is such a book. In 230 closely-reasoned and amply-documented pages, Cole surveys three areas of constitutional politics – same-sex marriage, Second Amendment gun rights, and the defense of human rights during the War on Terror – to put forward the thesis that the law makes progress largely outside the Supreme Court, mainly through non-legal strategies, and very incrementally. “The campaigns for marriage equality, gun rights, and human rights in the war on terror were as much about molding public sentiment as shaping law, as much about working outside the courts as pressing a case within them” (p. 221). The civil society groups that work to mold public sentiment are Cole’s “engines of liberty.” I ha...

by Neil H. Buchanan Last week, I participated in a conference, " Giving In Time: Perpetuities, Limited Life, and the Responsibility of Philanthropy to the Present and the Future ."  The conference was organized by Ray Madoff and Rob Reich, who are the directors of the two academic centers that sponsored the conference.  (Madoff is at Boston College, Reich at Stanford.)  The conference brought a handful of academics together with a fascinating group of people who run (and/or fund) some of the biggest philanthropic organizations in the world. The central question of "giving in time" is simple: If you were given funds with which to "do good" in some meaning of that term, would you do more good by spending it all right away, or by spreading it over time, or by holding onto the money until some point in the future?  This has become an especially important question recently, because there has been a notable increase in what looks to the naked eye like hoardi...

by Eric Segall There has been a lot written about Justice Antonin Scalia since his passing a few months ago. He was a larger-than-life figure (even by the standards of Supreme Court Justices), and no one can deny that he was a tireless public servant who devoted much of his career to government service. He was also, of course, one of the most polarizing Justices in our nation’s history. A number of the Justice’s former law clerks have written remembrances in both law reviews and non-legal publications. Some of these are from “counter-clerks,” so-called because Scalia occasionally hired one law clerk (out of four) per year whose politics fell on the liberal side of the spectrum. The vast majority of these pieces remember Scalia in a favorable light while also painting a realistic picture of the man’s flaws and shortcomings. Professors Ian Samuel and Lawrence Lessig are just two examples of former clerks who went on to become successful liberal lawyers and academics. There appears ...

by Michael Dorf The headline from Monday's SCOTUS ruling in Evenwel v. Abbott was that the Court unanimously construed the constitutional obligation of one-person-one-vote (OPOV) to allow the drawing of electoral lines to reflect roughly equal numbers of people, rather than, as the plaintiffs had argued, to require roughly equal numbers of voters. There were, however, two wrinkles. Wrinkle One: Justice Ginsburg's majority opinion did not address the argument put forward by Texas that the Constitution  permits  equal-voter districts or the argument by the federal government that the Constitution requires equal-population districts (and thus forbids equal-voter districts except in the coincidental circumstance when equal-population districts are also equal-voter districts). Concurring in the judgment, Justice Alito went further, rejecting most of the federal government's arguments for its position. Like the majority, Justice Alito did not officially purport to resolve th...

by Neil H. Buchanan One of the hazards of writing policy commentary is the hate mail.  Happily, true hate mail remains a rarity in my world, and even trolling is reasonably rare on Dorf on Law .  Occasionally, however, someone decides to send me an off-list email that is ... shall we say ... hostile to some degree.  The best/worst ever of those emails remains one that I never actually finished reading.  The first line was, "Seriously b*tch?!" but not with an asterisk replacing the "i."  I saved that one, even though I never bothered to read the rest of it. Two years ago, in " Is My Face Red? " I shared with Dorf on Law readers part of an email from an enraged reader who had informed me that my commitment to redistributing wealth and income were "the foundation of atrocities from slavery to the Killing Fields to the Inquisition to the Holocaust."  That was a good day, but what I still needed was someone with a bit more subtlety, someone who c...