Dorf on Law

  by Michael C. Dorf With the caveat that one can never say with 100% confidence how Justices will rule on a case based on their questions and comments at oral argument, I count at least five votes to reject the argument by Texas and the Trump administration for invalidating the entire Affordable Care Act . Chief Justice Roberts and Justice Kavanaugh very clearly signaled that they disagree with the claim that the individual mandate cannot be severed from the balance of the Act, while Justices Breyer, Sotomayor, and Kagan seemed inclined to rule against the challengers on multiple grounds. In addition, Justices Thomas and Barrett were skeptical of some of the arguments for standing. Accordingly, I'm going to assume for purposes of this essay that the challenge will be rejected and game out how the opinion(s) might be written. Spoiler Alert: I predict the case will be decided on standing grounds and that the Chief will write the opinion.

 by Sherry F. Colb Having finally stopped hitting "refresh" on the electoral count on Friday, I decided to go out for a walk with my dog Blue and listen to the arguments in Fulton v. Philadelphia  The case involves a Catholic organization that contracts with the government to help place children in foster care, and the question is whether the City may refuse to renew its contract with that organization because the latter refuses to  consider same-sex couples for certification as potential foster families. In other words, though several Justices seemed unwilling to frame it in this way, the Catholic organization discriminates against gay men and lesbians applying to become foster parents. In an argument that would have been amusing if it were not so appalling, we kept hearing about how no gay couple (or possibly only one gay couple) has applied to the Catholic organization to be certified as foster parents. I do not recall hearing anyone say it, so I will: of course a gay...

 By Eric Segall Twas in another election, one of toil and blood;  When Trumpism was a sickness and the road was full of mud;  He came from a gold plated bathroom, a creature void of form; He spilled his bile all over us;  And we entered into the storm Not a word he spoke was gentle, there was so much risk involved;  Everything up to that point had been left unresolved; We tried imagining a place where it's always safe and warm, but 2016 was terrible, and we entered into the storm I was burned out from exhaustion, disgusted by the man; he divided us like no other, all across the land; He picked Pence as his VP, which was equally bad form, and back in 2016, we entered into the storm Trump put a wall between us, something had been lost; we took too much for granted, we got our signals crossed; we thought he’d never win, but then we all were torn; and then in 2016 we entered into the storm His judges walk on hard nails and Fed Soc picked them all; Trump's bluster wa...

  by Michael C. Dorf No, this is not simply a blog post arguing that the U.S. would be a better, more democratic polity if we elected our President via a national popular vote. I believe that. I support a constitutional amendment to make that change. Failing that, I support the National Popular Vote interstate compact  as a means of circumventing the Electoral College (EC) as a second-best option for getting there. But I doubt that either change -- constitutional amendment or interstate compact -- will occur unless and until a Republican Presidential candidate clearly wins the popular vote but either loses or nearly loses the EC vote, because only then could there be enough of the state legislative support necessary for the change by either method. However, that's not what I want to say today. Nor do I simply want to complain that in 2000 and 2016 the clear winner of the popular vote lost the EC and that, pending the outcome of recounts, litigation, and shenanigans, there's st...

by Neil H. Buchanan   Although politicians and the media are understandably focused on the ongoing counting of votes in various key states, I continue to believe that nothing is going to stop the coup that Donald Trump has been advertising for years.  He has already filed several of the lawsuits that will work their way up to his stacked Supreme Court, and in the end, it will not have mattered whether Biden won by a little or a lot.  It was always going to end up in the hands of the Supremes. After all, even if Trump had lost Texas, Florida, and Ohio, there are fiercely pro-Trump Republican majorities running those state legislatures, supplemented by Republican governors.  Those states could have decided (and Arizona, and possibly Georgia, might yet choose) simply to award their electoral votes to Trump, no matter who won the votes in their states.   In addition, the key swing states of Wisconsin, Michigan, and Pennsylvania are all poised to see their legislat...

by Neil H. Buchanan Wishing to avoid the insta-pundit analyses that saturate Election Night coverage, and wanting to delay knowing the partial outcomes of the elections (which is all anyone can know at this point), I have succeeded in isolating myself entirely from the news for the past 24 hours.  This column very much addresses partisan differences, as I will describe presently, but I am choosing to write without knowing where things now stand politically.  (There might or might not be a reference to Schrodinger's cat here -- indeed, this sentence might or might not be a meta-reference thereto -- but because I know nothing about physics, I will leave it at that.) In what amounted to my closing argument about the election, I published two related Verdict columns on Monday and yesterday.  The first considers what Republicans' believe is their strongest case to the voters (the economy, if you can believe it), while the second considers by far their weakest (the pandemic...

 By Eric Segall The election is today (and perhaps goes on longer), but also tomorrow the Court will hear arguments in a major church/state case that could have far-reaching implications for our country.  A major American city, Philadelphia, decided to give out grants to public interest organizations to help place foster children in permanent homes. The city does not allow any group that wants to participate but rather insists in the contract, which no one is required to sign unless they want the city's grant money, that the grantee will not discriminate on the basis of several factors, including sexual orientation.  A church-affiliated organization, Catholic Social Services ("CSS"), took the grant money but refused to agree to the non-discrimination pledge because it feels children should only be placed with married  parents, and CSS does not consider legally married gay couples-well married. . The City then terminated the contract, and the religious group says tha...

By Daniel Epps Friday, Todd Henderson published a piece in Newsweek  arguing that "there is a fatal flaw in Democrats' plan to 'pack' the Court if they win—it is plainly unconstitutional." The piece received a less-than-enthusiastic reception on Twitter from me , Orin Kerr , and others, in part due to the fact that its author himself did not seem to be making the arguments in good faith (more on that in a moment). Will Baude, however, shortly thereafter responded with a thoughtful blog post in which he noted that Henderson's piece has "already attracted a ton of criticism" and arguing that the "criticism deserves more scrutiny."  In this post, I'm going to respond to Will's post. I have three goals. First , I'll try to explain why there haven't been well-developed arguments about the constitutionality of Court-packing/expansion, and why Henderson's piece wasn't likely to prompt them. Second , I'll offer some lar...

  by Michael C. Dorf If all goes well tomorrow, neither the Supreme Court nor any other court will have occasion to resolve post-election disputes because Joe Biden and down-ballot Democrats in tight races will win by a sufficiently decisive margin to render any such legal challenge futile. Yet if the last four years have taught us anything, it's that only a fool counts on all going well. Some combination of polling error and voter suppression could produce post-election litigation after all. Or, as Prof. Buchanan has repeatedly warned (including on Friday of last week ), Republican state legislators in states Trump loses could nonetheless disenfranchise their states' voters by purporting to assign their Presidential electors directly.  If post-election litigation ensues, its outcome could turn on a principle most clearly articulated thus far by Justice Gorsuch, joined by Justice Kavanaugh, in last week's Wisconsin case . I quoted the language in my "SCOTUS Kremlinolog...

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 ...