Dorf on Law

 By Eric Segall If you are reading this blog, you are almost certainly aware that last week the Supreme Court heard arguments regarding the constitutionality of Texas law SB-8 which prohibits all abortions in Texas after six weeks but provides only civil, not criminal, enforcement of the statute and only by private actors. This obviously unconstitutional law under still binding Supreme Court precedent was the brainchild of a former Justice Scalia clerk (of course) and its intent was to 1) stop most abortions in Texas, and 2) preclude any meaningful pre-enforcement review of the law.  It appears that at least two or three of the conservative justices will side with the liberals to strike down the law mostly because they were worried that blue states could pass similar laws regarding gun and free exercise rights. In this blog post, I want to focus on one of the re-occurring issues that came up in the oral argument: can federal judges issue injunctions against state court judges...

by Neil H. Buchanan   The University of Florida found itself in an unwelcome spotlight this week.  Under an unconvincing and evolving set of rationales, the university's administration had limited the ability of several UF professors to provide expert advice in legal cases challenging policies adopted by the current Florida legislature and governor.  A Miami Herald article lays out the facts of the situation nicely. As I will explain momentarily, these decisions and public relations blunders have already damaged the University of Florida's national and global reputation.  As a professor at UF's Levin College of Law, that damage concerns me greatly, not only because of its effect on my colleagues but for the collateral effects that it will have on our students.   There is, unfortunately, no way to un-ring this bell.  Damage has been done.  The only question now is how quickly the university can change course and try to contain and mitigate the reperc...

  by Michael C. Dorf For Democrats like me, the results of the off-year election just held are very concerning. How concerning? Here's what I tweeted yesterday morning: My "optimistic" take on the election results: If current trends continue, Republicans will win back Congress in '22 & prez in '24 w/o needing to lie about and override the vote. We will have awful policy, including voter suppression, but some semblance of democracy could survive. That bit of sardonic humor prompted one Twitter follower to observe that my bleak outlook sounded more like my co-bloggers Prof Buchanan and Prof Segall than my own apparently often more sanguine self. To be clear, although my tone is not necessarily as apocalyptic as theirs, there's not a lot of daylight between our substantive views and projections. Perhaps I'm just better at hiding it when I want to write about something other than impending doom. And guess what! Today I want to write about something other t...

by Neil H. Buchanan   How far will Republicans go with their anti-tax jihad?  Long before any reality TV bigots came along, America's conservative party defined itself by its opposition to taxes.  They claim to hate deficits, and they certainly hate any government spending that helps Those People, but even when they have been given the opportunity to trade $1 of increased taxes for $10 of spending cuts, the self-styled Party of Fiscal Responsibility emphatically rejected any increases in tax revenues. Last week, in the midst of everything else that is going wrong in the world, Republicans' anti-tax mania was given the opportunity to rear its ugly head when Senate Democrats proposed their so-called Billionaires Tax (BT).  Conservatives immediately claimed that the BT was most assuredly -- for some reason to be determined later -- an unconstitutional abomination, so I wrote a Verdict column explaining that the BT was not only constitutional but trivially so.  I...

  by Michael C. Dorf Today's oral argument in the two SB8 cases produced a great many interesting moments. I'll leave the reading of the tea leaves to others. Here I want to focus on two sets of questions. The first was an exchange between Justice Barrett and Marc Hearron, the lawyer for the Center for Reproductive Rights, who represented the private-party plaintiffs in the first argument,  Whole Woman's Health v. Jackson . It involves the question whether there is a constitutional right to prospective injunctive relief issued by a federal court. Mr. Hearron gave what I thought were suboptimal answers, but the correct answers ought not to have damaged his overall case. The second set of questions arose in the first case but primarily were discussed in the second one, United States v. Texas ,   when newly minted Solicitor General Elizabeth Prelogar pushed back against questions by Justices Thomas and Gorsuch (as well as others), who wanted to characterize the cause of acti...

by Michael C. Dorf Ever since the 2016 election, journalists for mainstream centrist-to-liberal outlets like the NY Times , Washington Post , and NPR have periodically ventured into Trump territory to listen to what the volk have to say. This sort of travelogue is so common that it has even earned a pejorative nickname:   a "Cletus Safari" , after a stereotypical hillbilly character on The Simpsons . The Cletus Safari is often at least ostensibly sympathetic.  Look. Sure, these white working class folks in the Rust Belt or rural America sound like racist and xenophobic theocrats, but you have to understand that ever since the plant closed and the opioid crisis hit, they've had it hard, so that's just projection. Admittedly, even the ostensibly sympathetic Cletus Safari is patronizing in the way that attributions of false consciousness always are. But despite that and many other problems, Cletus Safaris usually do not traffic in overt hostility for their subjects. Cont...

 By Eric Segall Last week on my podcast Supreme Myths, Dahlia Lithwick talked at length about the need for judges to display empathy and decency in their judicial opinions and to show that they at least appreciate the problems of people unlike themselves. As an example, she pointed to Justice Kagan's tendency to write opinions in the second person: "Imagine yourself...." That kind of empathy tells the parties that the judge understands their points of views and may make it just a little easier for one of the parties to deal with losing the case. Such sensitivity also provides a role modeling exercise for people reading the decisions.  Empathy when judging does not mean deciding a case in a way inconsistent with the law but rather a way for judges to show that the litigants have at least been heard. There is also a wide-ranging literature on the role of emotion and empathy in legal reasoning but this blog post is not about that. There can be no doubt that Justice Clarenc...

by Neil H. Buchanan   Although it is already on political life support (due to -- no surprise -- reported opposition from Joe Manchin), an important and quite appealing tax-the-ultrarich proposal was announced this week.  Dubbed (both accurately and for maximum political impact) the Billionaires Tax, it is a limited repeal of a longstanding tax giveaway to the tiny number of lucky people who can avoid receiving their incomes in the form of salaries or wages -- that is, extremely wealthy people. Soon after Oregon Senator Ron Wyden announced the plan, I received an email from a reporter for a financial network, asking if I could discuss the constitutionality of the Billionaires Tax.  I thought: "Wait, what?  This is a tax on income .  What could possibly be the constitutional question?"  But sure enough, the Republicans' responses to the plan have included, well, not exactly arguments but more like hopeful rumblings that somehow, maybe this is unconstitution...

  by Michael C. Dorf   (**Updated with link to our amicus brief) Later today merits briefs will be filed in the expedited SCOTUS cases on SB8. So will amicus briefs, including one from me and other federal courts scholars (Erwin Chemerinsky, Barry Friedman, Leah Litman, and Fred Smith). Meanwhile, I have a new Verdict column , in which I argue that the SB8 litigation is, in important ways, about the Court's own authority. At the end of the column, I mention prior episodes in which political actors--from Andrew Jackson to Little Rock segregationists to Richard Nixon--threatened to defy the Court. Allowing Texas to circumvent abortion precedents while they remain on the books would embolden further acts of defiance, I suggest. Here I want to speculate a bit about the public reaction we might anticipate to a possible outcome of the litigation. My speculation is inspired by a conversation I had yesterday with NY Times reporter Adam Liptak. He posed (more or less) the following po...

by Neil H. Buchanan Here at Dorf on Law , we have witnessed a bit of an uptick in trolling of late, which happens every now and then.  Our comments board is never particularly active (between one and ten comments per post being the norm), and the quality of the comments is often excellent and thought-provoking.  Moreover, once a troll reveals himself (and I readily admit that I am assuming that the trolls are male, based on the overwhelming weight of the evidence in the world), it is easy enough simply to put an offender on one's mental do-not-bother-reading list.  In any event, they usually leave (most likely due to boredom, given the relative sedateness of our community) after a few days or weeks. Of course, even the most annoying of those occasional incursions into our genteel little corner of the all-powerful series of tubes  are nothing compared to the mosh pits of Twitter and everything else online.  Elsewhere, women  and other disfavored victims are...