Dorf on Law

by Neil H. Buchanan The annual Independence Day holiday festivities provide an opportunity to reflect on the unique place that the United States holds in world affairs, for better and for worse.  How much worse has it become because of Donald Trump?  And does it matter? Back in 2008, as the Bush era was ending and we were attempting to assess the disturbing legacy of the Bush/Cheney Administration -- the falsified case for the Iraq invasion, the horrors at Abu Ghraib prison that had been perpetrated by U.S. Army and CIA personnel, the ongoing human rights disaster that was (and still is) the Guantanamo Bay prison, and on and on -- it had become obvious that the reputation of the United States as a beacon of hope had taken a huge hit in the eyes of the world. In December of that year, I wrote a short essay, " Our Reputation Matters ," expanding on an editorial in The New York Times that had argued for closing Guantanamo as a matter of both moral imperative and nationa...

By Eric Segall If you are angry or worked up about the Supreme Court’s decisions this year, please raise your hand. That’s what I thought. Whether one is liberal, conservative or somewhere in-between, there are not many folks terribly upset about the 2016-17 term. Sure, some may disagree with the Court’s anti-historical free exercise decision in Trinity Lutheran , while others might argue over whether the lower courts’ injunction of the travel ban should have been kept in place in full or lifted altogether. Others might have wanted the Court to grant cert in a big gun case while others would have preferred the Court not to grant cert in the wedding baker case . But overall, compared to the last few (meaning like ten) terms, this last week of June is much calmer than previous years.

by Michael Dorf In Pavan v. Smith , the SCOTUS issued a per curiam opinion reversing the Arkansas Supreme Court's decision  upholding an Arkansas statutory scheme under which the husbands of women who give birth are listed as fathers on the children's birth certificates but the wives of such women in same-sex marriages (SSM) are not. The reversal relied on the 2015 recognition of a constitutional right to SSM in Obergefell v. Hodges . Because only three justices (Gorsuch, Thomas, and Alito) were recorded as dissenting, speculation immediately ensued about whether there were six votes for the result. If so, that would mean that Chief Justice Roberts, who dissented in Obergefell , has accepted the ruling as settled law. However, as Joshua Matz explains on Take Care , we do not know whether the per curiam garnered five or six votes, because a justice can dissent from a summary action without publicly registering a dissent. I agree with Joshua that Pavan  does not te...

by Michael Dorf (cross-posted on Take Care ) Yesterday's SCOTUS ruling in Hernandez v. Mesa decided one question and punted on two. After explaining what the case decided and what it did not, I'll explain why one of the punts confirms my fear--expressed in a DoL  post last week that was cross-posted on Take Care --that federal civil rights actions against federal officers are practically a dead letter.

by Michael Dorf By late morning I will post some thoughts on the cross-border shooting case, Hernandez v. Mesa . For now, interested readers can get my take on the cert grant and accompanying order and opinion in the Travel Ban case, now known as Trump v. International Refugee Assistance Project , by reading my latest Verdict column .

By Eric Segall Of all the Court's zigzagging, implicit reversals, and outright reversals permeating constitutional law cases, perhaps the most incoherent doctrine of all is  justiciability.  Legal scholars across the political spectrum agree that the Court's standing, ripeness, and mootness doctrines have been manipulated by the Court over and over to reach whatever result the Justices prefer that day. These three doctrines derive from Article III's requirement that all federal cases involve a "case" or a "controversy." Before today, one thing that we thought was true was that the Justices would not decide advisory opinions or hear hypothetical disputes where both parties are in complete agreement on all the issues in a case. Sadly, even that rule is no longer true, Today the Supreme Court decided  T rinity Lutheran Church v. Comer , an important case raising high stakes about the separation of church and state.  The Missouri Constitution has prohibi...

by Zachary Clopton The President, without the consent of Congress, accepts an emolument from a foreign state. What next? The answer is judicial intervention, say recent lawsuits from private citizens , government bodies , and members of Congress . The merits of their allegations have been—and continue to be—thoroughly ventilated by others. This post addresses two issues related to whether these cases are appropriately handled by the federal courts at all, i.e., justiciability.

By Eric Segall The President of the United States owns a posh hotel in the shadow of the White House from which he derives foreign-government revenue. Along with income and benefits from many other domestic and international businesses, this revenue stream creates the very conflict of interest that the founding fathers wanted to prevent by writing into the Constitution that “no Person holding any Office of Profit or Trust … shall, without the Consent of the Congress, accept … any Emolument … from any King, Prince, or foreign State.” Members of both the House and the Senate have filed a lawsuit seeking to enforce this provision. These legislators allege that the President has violated their right, guaranteed in the text of the Constitution, to vote on and authorize the President’s acceptance of “emoluments.” They ask that the court require the President to obtain Congress’ consent before accepting benefits from foreign governments or divest himself of all interests in those b...

by Neil H. Buchanan Can anything be done to make congressional and state legislative races more competitive?  The Supreme Court has taken on a case from Wisconsin that could meaningfully limit partisan gerrymandering.  Depending on Justice Kennedy's vote, that case could change the way districts are drawn, which in turn could radically alter the results of American elections. I will surely have more to say about that case in future columns, especially the proposed formula for identifying impermissible partisanship that the plaintiffs would like the Supreme Court to endorse.  Before going there, however, it is first worth asking whether gerrymandering is as important as people like me think it is. After all, if Republicans' recent lock on the House of Representatives and state legislatures is not a result of gerrymandering (and voter suppression, which is obviously the key part of Republicans' strategy), an awful lot of effort on Democrats' part is going to be m...

by Michael Dorf ( cross-posted on Take Care ) The most important immediate impact of Monday's SCOTUS ruling in Matal v. Tam is that the Washington Redskins will be able to enjoy registered trademark protection, notwithstanding the offensiveness of their name. In invalidating the provision of federal trademark law that denied federal registration for any mark that would “disparage . . . or bring . . . into contemp[t] or disrepute” any “persons, living or dead,” neither Justice Alito's majority/plurality opinion nor Justice Kennedy's concurrence/concurrence in the judgment (joined by Justices Ginsburg, Sotomayor, and Kagan) relied on the fact that the respondent used the name "The Slants" ironically so as to " take it back ." Thus the holding also applies to offensive trademarks that are used unironically, like the Washington Redskins, Chief Wahoo of the Cleveland Indians , and Trump Tower . Meanwhile, a portion of Justice Alito's opinion that sp...