Dorf on Law

by Diane Klein As U.S. Attorney General, Jeff Sessions has been so prominent that much of the time - including in the midst of the current immigration crisis - he has vastly overshadowed the Deputy Attorney General, Rod Rosenstein.  And of course, under ordinary circumstances, most Americans cannot name the Attorney General, much less the Deputy.  But current circumstances are not ordinary, and with Sessions having recused himself from the Russia investigation, Deputy AG Rosenstein is in charge of this extraordinarily important legal and political undertaking - one that is putting him increasingly at odds with the Republican-controlled House.  On Thursday, June 28, 2018, he was back in the spotlight, being questioned by the House Judiciary Committee - and holding up admirably.

by Neil H. Buchanan Note to readers:  Because of travel commitments, I wrote the column below (to be published today, Friday the 29th of June) two days ago, in what turned out to be the few remaining hours before Justice Kennedy announced his retirement.  (I also wrote it pre - Janus , but that predictably terrible decision would not have changed anything here.) When I wrote the column, therefore, my musings about Supreme Court departures were entirely hypothetical, and I honestly thought that the column was a bit self-indulgent because, as I put it in the second paragraph, I was simply following a stream of consciousness that had been sparked by the Travel Ban decision. Well, unhappy surprise to all of us!  With Kennedy's announcement, I considered rewriting the column, but I have decided not to do so.  Indeed, the paragraph that I wrote that begins "As an aside" (after the "confirmation equation"), regarding unexpected Supreme Court openings, is already...

by Neil H. Buchanan The early part of this week saw the political chatter turn to another meaningless sideshow over "civility" and whether it is absolutely horrible that a few Trump Administration figures have been made to feel bad about themselves by members of the public.  It seems that some Americans are becoming unwilling to apply the usual rules to so-called public servants who are willing to enable a would-be king, and even though the restaurant owner who started the latest controversy was apparently polite in the extreme, that has not stopped the right-wing outrage machine (and, of course, Donald Trump himself) from going into overdrive. As usual, Sarah Huckabee Sanders managed to tell the biggest whopper by responding to this social slight with the claim that "I always do my best to treat people, including those I disagree with, respectfully and will continue to do so."  The Washington Post 's Jennifer Rubin had the perfect, deliberately understated ...

by Michael Dorf Today's announcement that Justice Kennedy is retiring has led immediately and understandably to speculation about how the process for replacing him will play out. This strikes me as silly. The GOP has 51 votes in the Senate. Mitch McConnell will make sure that a new justice is confirmed before the midterm elections or, in the worst-case scenario for Republicans--i.e., should the confirmation somehow be delayed until after the midterms and the Democrats take the Senate--in a lame-duck session. The new justice will certainly be at least as conservative as CJ Roberts, so regardless of how this goes, the Chief Justice is now the center of the Court. Here are a few very preliminary observations:

by Michael C. Dorf Today's decision in Janus v. State, County, and Municipal Employees   was completely predictable, given that the eight-justice Court divided evenly on ideological grounds on this question; anyone who thought Justice Gorsuch would ride to the rescue of public sector unions should consider buying a certain bridge I'm selling. Yet, if the outcome was predictable, Justice Alito's reasoning for the majority is nonetheless revealing. Here I'll note the key points of contact between Janus and what I regard as the weakest argument accepted by the conservative justices in  NFIB v. Sebelius  (the Obamacare case).

by Michael C. Dorf My latest Verdict column identifies a number of silver linings in the Supreme Court's generally disheartening Travel Ban decision yesterday. In it, I discuss the majority opinion of CJ Roberts, the concurrence of Justice Kennedy, and Justice Sotomayor's dissent. I don't discuss the Thomas concurrence or the Breyer dissent. Here I want to add a brief word about the former. After listing a number of reasons why he thinks the travel ban case was an easy win for the government, Justice Thomas pens a little essay lamenting the spread of nationwide, or as he calls them, "universal," injunctions. His basic gripe is that relief going beyond the parties to a case cannot be squared with the traditional equity powers of courts.

by Michael C. Dorf Today's decision in National Institute of Family Life Advocates  (NIFLA)  v. Becerra   was ironic in at least one respect. The Court applied strict scrutiny to California's law requiring so-called crisis pregnancy centers to post information regarding abortion options because of a broad understanding of what renders a law content-based. And yet readers of the Court's opinion could be excused for thinking that the decision itself was content-based. The Court divided 5-4 on ideological grounds, with Justice Thomas writing the majority opinion for himself and the four conservatives. Yet some of the dissenters (the Court's liberal-leaning justices) are, in other contexts, more protective of free speech than some of the majority. It thus looked very much like the reason for the Court's robust protection for free speech here was the subject matter or content of the speech regulation: abortion. (Justice Kennedy is a possible exception to this observa...

by Michael C. Dorf The Supreme Court decided two merits cases today and took one extremely puzzling action via a summary order. I'll have a tiny bit to say about an antitrust ruling, before focusing on the Texas racial gerrymandering decision and the puzzling summary order (in the florist case from Washington state). The unifying theme I'll identify is taint.

by Michael Dorf I'll probably be back a bit later today with a post on one or more of the cases the SCOTUS is expected to hand down this morning. Meanwhile, the video from my debate on originalism with Prof. Randy Barnett (which I previewed here ) is now available from the Reason magazine YouTube channel. If you prefer to listen only, you can also get it as a podcast here or through iTunes. A summary can be found at the SoHo Forum website . There is a warmup act--a "libertarian comedian"--with the actual debate starting at the 12:12 mark (of the video).

By William Hausdorff Tuning Out the Media after the Diplotainment in Singapore It’s really easy to become discouraged about global politics and the state of the American experiment. Earlier this month I hit a personal low point, where I felt I was truly missing something, as I watched the US news media’s ability to reduce the US-North Korean “event” to a mixture of wishful thinking and reality TV.   One can almost forgive the vacuousness of the news coverage of President Trump’s Mighty Handshake with Kim Jong-Un, since the bar was set so ominously low:   just a few months earlier Trump and Kim were publicly comparing missile sizes.   But other than a rhetorical cease-fire, what kind of deal could have possibly been expected with a US leader who revels in contradicting himself, who surrounds himself with a war-mongering Secretary of State and National Security Advisor that have each spoken about militarily overthrowing the North Korean government, and who are...