Dorf on Law

  by Michael C. Dorf In my Verdict column last week , I characterized Justice Breyer as: (1) a fox--who cared about and was interested in a great many things--rather than a hedgehog--who knows one big thing; (2) a compromiser; and (3) a balancer, who, other things being equal, saw the virtue of flexible multi-factor standards as superior to fixed rules. Contrasting Breyer with the late Justice Scalia, with whom he often sparred during their long overlap on the Court, I expressed a preference, all things considered, for Breyer's standards and balancing over Scalia's rules and commitment to constraining judicial discretion. That said, I freely acknowledge that going all in on standards has the downside that proponents of rules frequently discuss. Other things being equal, standards are less determinate than rules, so rules have the virtue of predictability--valuable for those who must conform their conduct to rules as well as to a society worried about vesting too much discretion...

by Neil H. Buchanan There is a growing likelihood that Republicans will force universities to toe their party line.  Having long convinced themselves that higher education (and, more recently, even K-12 education) is a hotbed of leftist indoctrination, they will surely enforce their orthodoxy without compunction.  Rush Limbaugh spent years telling them that academia is one of the "four corners of deceit" (the others being government, media, and science, the latter of which is in large part carried out in universities), and now they are ready to act.   The irony is that Republicans view the statistics showing that most professors are registered Democrats as proof of political bias, but even scholars in the pure sciences are understandably aligning with Democrats in the face of Republicans' anti-knowledge hysteria (which has intensified in the last two years but has been brewing on the right for generations).  So Republicans' attacks on universities as being partisan...

by Neil H. Buchanan   In what can only be described as a scorching ruling, a judge in the U.S. District Court for the Northern District of Florida ruled last week that the University of Florida (UF) continues to be in violation of the First Amendment.  Formally, because Chief Judge Mark E. Walker's 74-page ruling granted a preliminary injunction, the judge did not rule on the ultimate question.  Even so, only the most obtuse reading of his scathing analysis would leave any doubt about where this case is going in his court. I add those words -- "in his court" -- because this is almost certainly going to end badly for the professor-plaintiffs.  Before explaining why, it is worth recalling what is at stake in this case, which generated very negative worldwide coverage for my university late last year.  As I explained in two columns in November 2021, UF's reputation has taken a major hit.  Last week's ruling makes it clear that the administration's effort t...

 By Eric Segall Last week on the Law & Liberty Blog, Professor John McGinnis, a self-identified textualist-originalist, wrote a love letter to the Supreme Court about its decision in NFIB v. OSHA , which invalidated OSHA's COVID vaccination rules and to one of the most important constitutional law cases in history Y oungstown Tube & Sheet Co., v. Sawyer . In that case, the Supreme Court held that President Harry Truman could not seize the steel mills during the Korean War when a nationwide strike closed down the steel industry. The OSHA case is an administrative law case, whereas Youngstown is   a constitutional one but the two decisions have one thing in common that McGinnis likes--courts striking down federal government actions during emergencies. The title of McGinnis's post was "Jabbing the Administrative State." He wrote that the OSHA case may be "critically important" to the future of administrative law: It potentially cabins the awesome autho...

  by Michael C. Dorf Earlier today the Supreme Court granted review in two cases that pose the same question: "Should this Court overrule Grutter v. Bollinger , 539 U.S. 306 (2003), and hold that institutions of higher education cannot use race as a factor in admissions?" Recall that Grutter permitted the University of Michigan Law School to treat race as a "plus factor" in admissions, even as a companion case involving undergraduate admissions at Michigan rejected a fixed numerical score for minority applicants. Together, the cases converted what had been the de facto controlling view of Justice Lewis Powell in the 1978 Bakke case into the official doctrine. Cases since then have led to some sparring over the implications of the  Grutter decision, but prior to the Trump appointments, the Court had adhered to the framework Justice Powell established. But now potentially no more. To be sure, each of the two cases--one involving Harvard and the other involving the ...

 by Sherry F. Colb In its review of certiorari petitions, at least one Justice called for a response to the petition in Coral Ridge Ministries Media, Inc.,d/b/a D. James Kennedy Ministries v. Southern Poverty Law Center . When the Justices are considering granting a petition, they always begin the process by calling for a response from the respondent. For this reason, if you are on the respondent's side of a case in which your opponent files a petition for certiorari, you can save your client some money and yourself some time by waiting for the Supreme Court's reaction to the petition. Based on past history, the Court will not simply grant a petition for certiorari without having read the opponent's response to the petition. What makes the call for a response (CFR) to the petition in Coral Ridge Ministries noteworthy is the fact that the petitioner is asking the Supreme Court to overturn a First Amendment free speech precedent that has been with us since 1964, when the Cou...

by Neil H. Buchanan   In the days leading up to the moment when Joe Manchin and Kyrsten Sinema revealed that they honestly and truly are willing to allow constitutional democracy to die, a minor story hit the wires about the University of Alabama's football coach, Nick Saban, who was reported to have urged his longtime almost-like-family friend Manchin to support voting rights legislation.  The New Republic 's daily newsletter mentioned the story, adding that this was a big deal because Saban's position probably would not go over well in beet-red Alabama. It turns out that there was much less to this story than met the eye.  The Business Insider article covering the news -- which did, via its headline and opening paragraphs, make it appear that this was big news and meant what it appeared to mean -- described Saban's having signed onto a letter of support for federal voting rights legislation.  I had no idea that Saban had grown up in W.Va., but if there was that ...

by Neil H. Buchanan   I have no plans to move out of the United States, but I have been spending a fair bit of time lately writing about that topic.  And for obvious reasons.  Especially now that Senators Joe Manchin and Kyrsten Sinema have joined with every Senate Republican to end American democracy -- although Manchin somehow thinks that "the government" will protect voting rights, even without Congress requiring it -- pretty much nothing stands in the way of Republicans (mostly at the state level) now fully gutting voting rights, installing partisans in formerly nonpartisan counting-and-certification roles, and so on. No matter whether I personally pull the plug, there are very important questions about what will happen after elections no longer matter in this country.  In a Verdict column last week (" Where to Move? "), I explored the question of expatriation generally, along the way inquiring whether the UK is on the same path as the US (making it pointless...

  by Michael C. Dorf In a brief order today , the Supreme Court rejected former President Trump's request for emergency relief that would block the release to the House Select Committee on January 6 of various presidential records on grounds that they are privileged, notwithstanding President Biden's determination not to invoke the privilege. Trump's request in principle raised an important question: how much weight should a former president's attempted invocation of executive privilege be given in the teeth of the incumbent's rejection of that invocation? However, as the Court also noted, the appeals court ruled that even giving Trump the same power to invoke executive privilege as an incumbent would enjoy, the House Select Committee subpoena prevails. After all, under United States v. Nixon , a president does not enjoy an absolute privilege; and per Trump v. Mazars , that's also true of a privilege asserted as against a congressional investigation. So Trump...

  by Michael C. Dorf No, that was not one of those clickbait headlines that requires you to scroll and click through dozens of pages and see hundreds of ads before you learn the answer to the teaser question (e.g., "Can you guess which Hollywood stars used this mustard-seed paste instead of plastic surgery?"). The winner of my Twitter poll question --which asked readers to "Vote for the alum who most embarrasses Yale Law School"--is Harvard's Felix Frankfurter Professor of Law, Emeritus, Alan Dershowitz. Please join me in congratulating the eminent scholar/lawyer/author who famously kept his underwear on when receiving a massage at Jeffrey Epstein's residence. Perhaps with this prize in hand, Professor Dershowitz's erstwhile friends on Martha's Vineyard won't shun him  next summer. Now for a few quasi-serious reflections about my silly poll, which I kept open for three days last week and into the weekend. Here are the full final results: