Dorf on Law

By Matthew Tokson Now that American politics has returned to something resembling normalcy, it's a good time to consider the future of the Supreme Court in the Biden era. Eric Segall recently previewed  the direction that the Court is likely to take over the next several years. As he convincingly argues, on issues like abortion, regulation of business, civil rights, affirmative action, voting rights, and many others, the Court's rulings will likely shift from conservative to very conservative. On a theoretical note, I'd add that increasing polarization and the expanding politicization of policy issues will likely shrink the sphere of legal issues where party affiliation is irrelevant . To be sure, the recent resolution of cases like Trump v. New York suggests that the Court may exhibit meaningful restraint in adopting radical changes to existing laws or constitutional practices. But generally, the Court's strong rightward tilt will drive outcomes in most of the ever-gr...

by Neil H. Buchanan At this point, I think Republicans have done Democrats a favor by insisting on delaying the start of the impeachment trial.  To be clear, I am talking about the second delay, which pushed the trial back from the first few days of President Biden's term to the week of February 8.  The first delay, when Mitch McConnell refused to take up the issue at all before the end of Donald Trump's term, was both dangerous (because we are simply lucky that nothing worse happened in Trump's final few days) and dishonest ("It's too soon" having been immediately followed by "It's too late!"). But as to the second delay, I think that Democrats have to be pretty happy.  Republicans are disgracing themselves once again, all the while forcing an outcome that their most fully disgraced members -- presidential pretenders all -- truly do not want but have to pretend to support.  Meanwhile, more and more evidence continues to pile up regarding Trump...

by Michael C. Dorf Before John Kerry was climate czar, before he was the Secretary of State who brought the US to the Iran nuclear deal and the Paris Climate agreement, before he was the Democratic Presidential candidate who was unfairly attacked by the fatuously named Swift Boat Veterans for Truth, and even before he was a US Senator from Massachusetts, Kerry was a multiply decorated young naval officer serving in Vietnam. He came to national prominence nearly fifty years ago when he testified before the Senate Foreign Relations Committee. Kerry famously asked, "how do you ask a man to be the last man to die in Vietnam? How do you ask a man to be the last man to die for a mistake?" The question was urgent then. A variation of it is urgent now--both in the ongoing battle against COVID-19 and for the at-least-equally-urgent-and-ultimately-even-higher-stakes battle with climate change that Kerry will now spearhead for the US.

by Neil H. Buchanan   I hereby state clearly and unequivocally up front that Donald Trump should be convicted in the upcoming Senate impeachment trial.  Whatever one might have thought about his first impeachment, or about anything else that he has done that endangered and diminished the nation, he is guilty as charged -- guilty as sin -- in the current article of impeachment.  And it matters that he be so found.   That being said, my focus today is on the consequences going forward of the outcome in the Senate, no matter which way it goes.  My contention is that it is unclear which outcome would be good or bad for the future interests of Republicans or Democrats, so Democrats and all others who are not in the death cult need to keep the stakes in Trump's trial in perspective.   That is, I can spin a story in which good things happen for Democrats even after an acquittal, and I can tell a different yarn where bad things happen to them after a conviction....

 By Eric Segall The Trump Administration is finally over, and the Biden Administration will be able to undo some of the great damage done by its predecessor. For example, Trump’s irrational rule requiring women to purchase medical abortion pills in person, overruled by a federal judge but then reinstated by the Supreme Court, will almost certainly be reversed by Biden’s Department of Health and Human Services. There are a myriad of other executive branch decisions and regulations that Biden can, over time, reverse. But there is one important Trump legacy the new President will not be able to change--the installing of three ultra conservative Justices who along with Chief Justice Roberts and Justices Thomas and Alito, will, absent serious Court reform, overrule important legislation for decades or more. This six-three GOP Court may be the most conservative one since before the New Deal. I detail below what to expect from the Roberts Courts in the next few years and then suggest a...

by Neil H. Buchanan In a Verdict column last week , I dissected the utter lawlessness of Republican Senator Josh Hawley's attack on the 2020 election results.  Along the way, I returned to a concept that I have called "legalistic lawlessness," which is the socially presentable alternative to openly thuggish autocracy.  In that dressed-up version, the raw power of the autocratic regime is given legal cover, which has the effect of giving people of good conscience -- especially lawyers and judges -- a way to avoid confronting their own complicity in the brutal, antidemocratic actions of the tyrant: "I'm just following the law!" Drawing from one of the two or three most notorious historical examples of a murderous national government taking refuge behind the cover of its own unjust laws, I wrote: "[I]t feels a lot better to judges and legislators to say that what they are doing is legitimate. The Nazis passed laws that made the Holocaust not...

by Neil H. Buchanan   Today is the day on which I published the Verdict column that I feared I might never be able to write, acknowledging that my longstanding prediction that Donald Trump would never leave the White House turned out to be wrong.  Gloriously, wonderfully wrong.  Nothing that I have written over the last four-plus years was at all implausible, and on many days a horrible outcome seemed all but a lock.  History took a different turn, however, and that is good for the future of humanity. Predicting that Trump and the Republicans would steal the 2020 election and then install what would effectively be a dictatorship (while maintaining the false trappings of democracy) was not my only mistaken prediction, of course.  I also wrote , for example, that Trump would both try to pardon himself and resign a day early to get Mike Pence to pardon him as an insurance policy.   Because of the last, deadly gasp of Trumpism's ugliest manifestations on Janu...

by Michael C. Dorf   [**Updated to acknowledge two articles I neglected to cite in the initial version:] After four years that felt like four lifetimes and a post-election eleven weeks that felt like eleven years, Inauguration Day is finally here. My new Verdict column addresses one of the challenges that will now confront President Biden and other rational Americans: the fact that so many people believe in dangerous nonsense. I suggest that the reasons for such beliefs are pretty deeply rooted in human psychology. The political power of conspiracy theorists and the craven politicians who do their bidding might not derail the Biden legislative agenda, but the conspiracy-theory-believing Americans themselves will make it harder to accomplish some of the urgent tasks that require public buy-in. Now I want to shift gears and discuss the upcoming Trump Senate impeachment trial--which is being described by some as another potential obstacle to the Biden agenda, if for no other reason t...

By Diane Klein The addition of mandatory legal ethics instruction in ABA-accredited law schools is one of the lasting legacies of Watergate . Recent events at the Capitol (and if we're honest, throughout the Trump Administration) demonstrate conclusively that this reform was a complete failure . If that sounds like an overstatement, we might do well to ask why it was ever imagined that instruction in professional ethics would somehow infuse law students with the civic virtue of respect for the rule of law, or somehow prevent them from turning out to be the sort of bad people who countenance or even encourage lying and violence in order to achieve their personal or political ends. No two-unit course in law school (even coupled with a 60-question multiple choice test) could ever do that - as has been known since at least the time of Aristotle.

by Michael C. Dorf Dr. Martin Luther King, Jr., was born on January 15, 1929. Today is the official annual day of recognition of his birth. In past years, I have sometimes posted MLK Day essays on a theme related to Dr. King's life and work. I considered doing so today. Following a year that saw both massive protests for racial justice and political violence that included expressly racist symbols and language, there would certainly be no shortage of material. But I find myself too unsettled in my thoughts about such matters to do so today (although what I say will touch upon race and racism in one particular). I am confident that interested readers will find no shortage of such reflections elsewhere. Accordingly, and with apologies for the fact that doing so does not quite match the occasion, I offer some commentary on the latest nonsense to ooze forth from the brain of the man who was once "America's Mayor."