Dorf on Law

by Neil H. Buchanan In 2016, the Republicans in the U.S. Senate bluntly told everyone that they were not going to take up Barack Obama's nomination of Merrick Garland to the Supreme Court.  Everyone was shocked and did not truly believe they would go through with it, but it happened.   In late 2017, congressional Republicans shed all pretense that they were going to follow normal (or even minimally rational) procedures in passing their punitively regressive and expensive tax bill, yet even avowed proceduralists like John McCain and NeverTrump fiscal faux-hawks like Jeff Flake happily went along with the multi-trillion dollar upward redistributive scheme. At multiple times in the past two decades, Republicans have announced that they were blocking even the most minimal gun control legislation, even when ninety percent of the public supported it.   In early 2020, Senate Republicans announced that they were not going to take their constitutional duty seriously by holding a ...

  by Michael C. Dorf Within the last week, the Supreme Court has ruled on two election-related stay applications from Pennsylvania, one from Alabama , one from Wisconsin , and one from North Carolina . In three of the five rulings, the position favored by Democrats prevailed, with the result that, for now, the deadline for counting absentee ballots is modestly extended in Pennsylvania and North Carolina but not Wisconsin. The Alabama case (in which Democrats lost) involved curbside voting, not deadlines. Superficially that pattern is good news for Democrats. So far as the Presidential race is concerned, counting every possible vote in Wisconsin is less crucial than in Pennsylvania and North Carolina, given that Joe Biden has a wider polling lead in Wisconsin than in Pennsylvania or North Carolina. Meanwhile, Biden is not going to win Alabama under any circumstances, and while Doug Jones cannot afford to lose any votes, he's likely to lose his Senate seat regardless. But even the go...

  by Michael C. Dorf Joe Biden spent part of yesterday campaigning in Warm Springs, Georgia, which had been the site of a retreat owned by FDR. The  NY Times described Biden's speech there as "a let-us-come-together appeal that evoked the sort of common purpose that sustained the country during the Great Depression and World War II and that Mr. Biden said was needed to overcome the coronavirus." Fair enough. But for many people who have been following the news from and about the Supreme Court, reminders of FDR are more likely to evoke his Court-packing plan than his unifying rhetoric. Biden himself, however, pretty clearly did not intend that message. As I explain in my new Verdict column , the bipartisan commission Biden hopes to create to study potential court reforms is highly unlikely to recommend Court expansion. We can see that from both the way Biden himself has talked about it--"not a fan"--and the nature of the commission--bipartisan and thus extraordi...

by Neil H. Buchanan Before I get to the discussion advertised in the title of this column, let me start with a seemingly unrelated question: When you receive a refund on your taxes, do you think that you paid zero taxes in that year?   That is possible, of course, but the more likely case is that you (like millions of Americans) have set up your payroll arrangements so that you end up paying more in taxes during the year than you will owe, giving you a nice little lump of sugar when you fill out your taxes in April.  Or if (like me) you want to withhold fewer dollars during the year and then pay a nominal sum with your tax return, you can do that, too.  In neither case, however, is the amount you owed in taxes in a given year knowable from the refund/owed lines of your tax return. Donald Trump, however, thinks otherwise.  At least based on what he said at the most recent non-debate, he believes that the report in The New York Times showing that he paid only $750 in...

 By Eric Segall Once upon a time in a small corner of Texas there was a federal trial judge named Reed O’Connor who really, truly hated Barrack Obama and all other things liberal. He ruled several Obama-era policies regarding transgender students unconstitutional, he struck down a federal law prohibiting the interstate transportation of handguns, and he overruled an Obama administration rule barring health care providers from discriminating based on gender identity. Those conservative rulings all came before his tour de force front-page potentially country-changing decision in the aptly named case California v. Texas to invalidate the entire Affordable Care Act (Obamacare) potentially disrupting our entire health insurance and health care systems. Why would Judge O’Connor do such a drastic thing apart from his obvious desire to both destroy all things Obama and to be elevated to the Fifth Circuit Court of Appeals, otherwise known as the anti-Obama Circuit? The story begins i...

by Neil H. Buchanan Last night, Joe Biden and Donald Trump appeared in what would have been their third and final joint TV event, in what is still laughably called a debate.  With the world having been spared the second such event, I had hoped that this one would also be canceled.  We were not so lucky.   For the sake of my mental health, I did not watch the broadcast.  As I explained after the Mike Pence smarm-fest (better known as the Vice Presidential debate) two weeks ago: "[T]he only way that I can consume an event like last night's joint press conference with Pence and Senator Kamala Harris is by reading news coverage and watching various talk shows (where even exposure to 15-second clips threatens to send me into convulsions). "Given that none of these so-called debates are actually debates, I no longer feel in any way honor-bound to treat them seriously ... .  The only thing that matters is how the punditocracy scores them, and even that matters...

  by Michael C. Dorf In our public life we face multiple current and looming catastrophes: a surging global pandemic; resulting economic devastation; a grotesquely hypocritical rush to fill a Supreme Court vacancy; devastating wildfires and other climate-change-worsened natural disasters; and a Presidential election in which the incumbent has repeatedly indicated his intention to reject the outcome and deploy political violence to remain in power. It can be overwhelming. Thus, as a service to my readers, today I offer a distraction in the form of analysis of a trivial matter-- the suspension of New Yorker writer and CNN analyst Jeffrey Toobin after he was seen masturbating during a Zoom-based meeting in which various figures were gaming out possible election scenarios. I haven't kept close count, but this is at least the second sex-related scandal involving Toobin. He also  made news a little over a decade ago when he unsuccessfully resisted the claim that he had fathered a ...

by Sherry F. Colb In my Verdict column this week, I continue a discussion I began two weeks ago of why people so frequently treat charges of acquaintance rape as “he said/she said” cases. I challenge this characterization for the obvious reason that defendants have every incentive to say “I’m innocent,” whether they are or not, while accusers have no similar systematic incentives to level accusations independent of their truth. Stated differently, what “he said” is inherently low in credibility, and it is not obvious why we would similarly demote what “she said” when we would not do so in cases of stranger-on-stranger crimes (including rape), even when there are just two witnesses, “he” and “she.” I suggest that the explanation for this puzzle may be a function of the stereotypical stories we all learn about relationships between men and women. All of us have heard that “hell hath no fury like a woman scorned.” Because no one wants to be rejected, we assume that the woman who accus...

by Neil H. Buchanan   Weirdly, Donald Trump has recently altered his stream-of-consciousness speeches at his rallies to include musings about the possibility of losing the 2020 election.  He has even talked about leaving the country, which has provided no end of delight to late-night comedians and pundits.  But does this mean that he is actually preparing for the possibility of losing and -- gasp! -- admitting that he has lost, followed by a peaceful exit from the White House?   Would that it were so, but we need to remember that we are talking about a person with an incredibly short attention span who leaves not even the most fleeting thought unspoken.  That he has apparently occasionally considered that he might lose the election tells the world nothing about what he will do if (when?) the time comes.  He has put in all kinds of spadework to allow his claims of voter fraud to take root and ultimately blossom, and his legal team has already spent ungodly ...

  by Michael C. Dorf A recent Twitter thread by my colleague James Grimmelmann begins: "The current discussion about whether Democrats should expand the size of the Supreme Court if they control the 117th Congress is an important one. But it overlooks something equally important." Prof Grimmelmann then goes on to catalogue some of the many ways in which a Democratic Congress could reshape the law in a great many areas, including voting rights, qualified immunity, antitrust, court access, and much more. Some respondents pushed back, observing that a very conservative SCOTUS could and likely would limit much of what a Democratic Congress and President accomplished legislatively through a combination of constitutional limits and statutory interpretation. I think that's a genuine worry, although that hardly means that a Democratic Congress and President shouldn't pursue an aggressive substantive agenda. Here I want to speculate a bit about how the prospects for Court exp...