Dorf on Law

by Michael C. Dorf In my latest Verdict column , I note that with Justice O'Connor's announcement last week that she is withdrawing from public life, we have reached another milestone in the passing of the Reagan Court. The announcement underscores what we already knew last summer when Justice Kennedy announced his retirement. After nearly three decades in which Reagan's appointees--O'Connor, Kennedy, and Scalia--dominated the Court, a new era has begun. I argue in the column that, ironically, the real Reagan Court has now finally been born. Here I want to focus on a very different sort of issue raised by Justice O'Connor's announcement. As readers may recall, Justice O'Connor announced retirement (pending confirmation of a successor) in 2005, at a time when she could have served longer. She did so in order to be able to care for her husband, who was then himself suffering from dementia. Unfortunately, John O'Connor's condition quickly worsened t...

by Michael C. Dorf This morning an NPR reporter referred to President Trump's suggestion that he would "end birthright citizenship" by executive order as "vaporware"--a rumored product that never actually materializes, intended only to thrill his fans, much like Trump's promised impending middle class tax cut. I hope that proves correct, but these are dark times in which one should take seriously even the most outlandish suggestions. Indeed, South Carolina Senator Lindsey Graham has already raised Trump's opening bid, saying that he plans to introduce legislation accomplishing by statute what Trump proposes to accomplish by executive order. Is either path open? The short answer is no. The long answer is also no, but in a way that may prove interesting to explore.

by Michael C. Dorf  (** New as of 10/31/2018: Updated with a Postscript) A recent column by David Brooks takes Democratic candidates to task for focusing so much of their midterm election messaging on health care. It's easy to dismiss this column as just so much concern-trolling by Brooks, and in an important sense it is that. Brooks--self-appointed defender of the Republic from the evils of identity politics--thinks that the Democratic strategy will fail because Democrats can only appeal to particular identity groups one at a time and are thus missing out on an opportunity to appeal to disaffected Republicans. That's not just wrong but actually backwards. To state the obvious, everyone--regardless of race, sex, religion, gender identity, or any other identity--needs health care. The emphasis on health care reflects Democratic efforts to broaden the party's reach by appealing to voters who may have identitarian reasons of their own (such as whiteness or Evangelical Chr...

By Eric Segall Justice Clarence Thomas is our longest serving Supreme Court Justice. He first came into the public eye in October 1991, when Anita Hill accused him of sexual harassment. He dogmatically denied the claims calling his confirmation hearing a “hi-tech lynching.” He has been embroiled in controversy ever since. Many conservative Court scholars believe it is Justice Thomas, not the deceased Justice Scalia, who has been the most important driving force behind originalist decision-making. Thomas has written solo opinions challenging well-established Supreme Court doctrine in the areas of gun control, the appropriate balance between church and state, and Congress’ powers to regulate the economy, among many others important swaths of constitutional law. He has also recently been called by one liberal commentator the “most important legal thinker in America.” Dozens of Thomas’ law clerks have become federal judges, and his originalist statements about constitutional...

by Neil H. Buchanan The federal budget deficit is one of those handy political issues that never stays out of sight for very long, because it is too tempting for demagogues to exploit it.  It has the simultaneous advantage of seeming to be self-evidently important yet too difficult to truly understand, making it easier simply to say that "borrowing is bad, and deficits are hurting our children and grandchildren."  If ever there were a political Q.E.D., there you have it. To make matters worse, this is the go-to subject that ignorant pundits use to prove that they are not merely political hacks.  "Hey, I know that we argue about political issues, but every serious person knows that at some point we must all come together to deal with those horrible deficits.  Debt will destroy us all!"  There are so many examples of that kind of statement by people who know next to nothing (or literally nothing) about economics -- but who have positive reputations among liber...

by Sherry F. Colb In my Verdict column this week, I discuss a controversial website at the University of Washington, where victims of sexual misconduct can anonymously post the names of their assailants or harassers. Addressing the issue of how we might think about the existence of such a list, I drew an analogy between the list and coat-hanger abortions, as both are symptoms of larger phenomena. I went on to suggest that the solution to undesirable processes can sometimes be to offer alternatives to those processes--a willingness to criminally prosecute acquaintance rape as a matter of course, for example, and an available abortion provider who can terminate unwanted pregnancies in a safe and medically competent fashion. In this post, I want to explore some further links between rape and abortion, because I think there are several. The issue of abortion appears to be more controversial than the issue of rape, so why would anyone want to talk about the two together in an effort to...

by Neil H. Buchanan As the news cycle plods along on its inexorable march of awfulness, those of us who toil in the fields of legal analysis cannot help but linger on the implications of the recent change in Supreme Court personnel.  The replacement of only-occasionally-not-arch-conservative Anthony Kennedy with yet another full-on movement conservative continues to pose questions about how the judiciary will operate going forward. These questions will, of course, only become more pressing as Senate Republicans put more and more Thomas/Gorsuch/Kavanaugh clones on lower courts, which will continue at least through the upcoming lame duck session and for at least two additional years if (as expected) the Republican majority holds or is expanded in next month's midterm elections. Will this wave of conservative justices and judges change the way cases are handled by the courts -- not in the sense of procedural changes (although those might well be in the offing as well), but in t...

by Michael C. Dorf At its conference on Friday, the Supreme Court will decide whether to grant review in Flowers v. Mississippi ( SCOTUS page here ). Flowers was tried six times for the same offense. Each of the first five trials resulted in  a reversal of a conviction, a mistrial, or a hung jury. On try number six, a jury that was selected through racial discrimination found Flowers guilty and sentenced him to death. There are at least four reasons for the US Supreme Court to take the case or summarily reverse the decision of the Mississippi Supreme Court upholding the conviction and sentence.

By Eric Segall I just finished reading a great new book by Professor Kent Greenfield of Boston College Law School called "Corporations are People Too (And They Should Act Like It)." For anyone interested in what constitutional rights corporations should possess, or in corporate rights and responsibilities generally, this book is a must read. Greenfield is one of the very few law professors in America with a serious background in both constitutional and corporate law, and his double expertise is reflected in almost every chapter of the book. The essential thesis of the book is that the law does and should treat corporations as people, and the strong anti- Citizens United  movement arguing that corporations are not people is deeply misguided. At the beginning of the book (pp. 2-3), Greenfield points out that, first, for a very long time corporations have been deemed people under a myriad of legal regimes because corporations can sue, be sued, and "own and sell stuff...

by Michael C. Dorf Earlier this week, Federal District Court Judge S. James Otero issued an order dismissing the defamation lawsuit by Stephanie Clifford, aka Stormy Daniels, against Donald Trump. After Clifford had said that in 2011 she was threatened by a man who worked for Trump or then-Trump-attorney Michael Cohen, Trump tweeted that the threatener was "nonexistent" and that Clifford's story was "a total con job." Clifford sued Trump for defamation on the ground that calling her a liar was, well, defamatory. Judge Otero dismissed the suit. He did not say that Trump was right. Instead, the judge said that Trump's statements were not to be evaluated under ordinary standards of truth, because they were mere "rhetorical hyperbole" that a reasonable person would not expect to be true as such. I think that's probably wrong.