Dorf on Law

by Neil H. Buchanan   The Biden White House recently proposed what it calls a "Billionaire Minimum Income Tax."  On his show last night, Seth Meyers quipped that the proposal was "part of [Biden's] 2023 budget, specifically the part they'll have to cut out before it'll pass."  He is right, which is a shame, because this is another instance in which completely sensible tax policy is going to give way to ignorance and bad faith. It is no surprise that Republicans oppose this idea.  Not only do they oppose anything that Democrats favor, but their very reason for being is to reduce taxes on the rich.  What is annoying, however, is that people who truly should know better are saying completely fatuous things about the proposal -- statements that are so misguided that it makes me think that there is simply no way that our political culture could ever move forward with even the most promising improvements to tax policy. The Biden proposal is based on plain-van...

by Neil H. Buchanan   Late last week, Erwin Chemerinsky and Howard Gillman co-authored an important opinion column in The Washington Post : " Free speech doesn’t mean hecklers get to shut down campus debate ."  As the law dean at UC Berkeley and the chancellor of UC Irvine, respectively, Chemerinsky and Gillman speak from the position of administrators.  But as respected scholars, they also speak from the viewpoint of professors, and they do so with great authority.   I thus was not surprised to find myself agreeing with their essential point, which is that "[f]reedom of speech does not include a right to shout down others so they cannot be heard."  Noting that some people defend those who shout down others by saying that the hecklers are themselves engaged in free speech, Chemerinsky and Gillman conclude that "[t]hat is wrong in terms of both the law and appropriate campus policy."   Again, I agree with the principle that there can be no heckler's v...

  by Michael C. Dorf Last week, in Austin v. US Navy Seals 1-26 , SCOTUS stayed a federal district court order that had barred the Navy from considering the "respondents' vaccination status in making deployment, assignment, and other operational decisions." It was a rare shadow docket case in which the Court chose to intervene against religious claimants and in favor of the government's assertion of public health interests. The very brief per curiam does not provide reasons and leaves open further consideration on the merits of the certiorari docket, but even at this stage, a concurrence and a dissent raise interesting questions. The majority comprised the Democratic appointees and what we might describe (recognizing that these descriptions are all relative) as the "moderate" conservatives: Chief Justice Roberts and Justices Kavanaugh and Barrett. Justice Kavanaugh also wrote a concurrence in which he spoke only for himself. Justice Alito wrote a dissent in...

 By Eric Segall If there is one thing that liberal, conservative, and moderate Supreme Court watchers and commentators all agree on is that the Supreme Court confirmation process is broken and has been for a long time. Last week was a painful exercise in pandering and deflection from all involved, including the nominee -- but that's not her fault. She played the game by the normal rules and I do not necessarily blame her for that. And to be clear, I strongly support her confirmation. But, because of those rules, like all Supreme Court confirmation hearings, this one was mostly a sham. Rather than focusing on the real views of the nominee, we had to listen to Republicans obsess over child pornography and critical race theory while the Democrats spent most of their time on the nominee's character as opposed to her legal views. The nominee said she was an originalist, but that could mean many things inconsistent with what people think originalism is, and she paid lip service to th...

  by Michael C. Dorf Having kept her cool through the ordeal of misogynistic,  sometimes racist  interruptions and mischaracterization of her record by various Republican members of the Senate Judiciary Committee, Judge Ketanji Brown Jackson will now likely be confirmed, absent some unexpected hitch (which is possible in a 50-50 Senate). SCOTUS confirmation hearings have become substantially less informative since 2005, when then-Senator Joe Biden aptly called the process a "kabuki dance." Even so, amidst the cringe-inducing botching of the law by Senators and the artful dodging and absurdly formalistic accounts of judging by the nominees (of both parties), one occasionally finds something interesting. That didn't happen this week but it almost did. Much of the questioning by the likes of past and future GOP Presidential hopefuls Ted Cruz, Lindsey Graham, Josh Hawley, and others focused on Judge Jackson's sentencing record in the handful of cases involving convictions...

by Neil H. Buchanan I have been saying for years that "political correctness" is a meaningless term, and I have repeatedly called on people who should know better to stop using it -- even (especially) when they think it does have a straightforward meaning, such as "saying 'differently abled' rather than 'disabled.'"  This has all become much worse, however, since the right's PC-panic-on-steroids of "cancel culture" and "wokeness" emerged over the last year or so -- again, abetted by liberals who truly should know better. One bit of evidence that these terms merely mean "something I don't like and want to disaparage" came in yesterday's announcement by Donald Trump that he is no longer endorsing Mo Brooks's Senate run in Alabama.  Why did Trump turn against the man who, perhaps even more than Rudy Giuliani, was a key part of the effort to keep Trump in the White House illegally?  Brooks, Trump tells us, i...

  by Michael C. Dorf I begin with a confession. The press of other obligations and the generally farcical nature of SCOTUS confirmation hearings have led me to pay attention to the current hearing for Judge Jackson only intermittently, mostly contenting myself with summaries and highlights. Yesterday I did manage to hear and tweet about the incompetent questioning of Judge Jackson by Senators Feinstein and Cornyn . I also listened to Senator Cruz fret that Judge Jackson's service as a member of the Board of Trustees of Georgetown Day School brands her a radical because the school--according to Cruz--teaches critical race theory to young children. That was enough for me for one day. I'll probably be unable to prevent myself from listening to more of the hearing today, but I'll take long breaks and will surely miss something. No worries, though. In the unlikely event that Judge Jackson yells, cries, or professes fondness for any category of alcoholic beverage, I'm sure ...

by Neil H. Buchanan   One of my central complaints about the American press is that reporters tend to be generalists and thus have only the most basic familiarity (at best) with any particular subject matter.  This can -- and frequently does -- lead them to make egregious errors, which is annoying and often harmful but does provide plenty of grist for my columns.   The other night, one of the MSNBC commentators made that point in the context of coverage of the war in Ukraine, noting that generalist reporters are expected to pivot from talking about corporate taxes to green energy to military matters.  He then noted that almost all of the reporters from major news organizations had quickly grabbed onto the "no-fly zone" notion, continually asking questions of Administration figures that essentially said: "A no-fly zone is obviously a good idea, so why aren't you doing it yet?"  The commentator then explained that, happily, reality had penetrated the reporters...

 By Eric Segall For far too long the United States Supreme Court has unduly interfered in our local, regional, and national politics. The Justices on all sides of our political divides consistently veto important state and federal laws without any persuasive basis in constitutional text or history. This overreaching is not a new phenomenon but goes back almost two centuries. I detailed that overreaching in my book "Supreme Myths," and I have been a strong Supreme Court critic through liberal, moderate, and conservative times.  Although numerous proposals have been advanced by legal scholars and politicians to deal with a Court that is much too involved in our politics and elections, none will be adopted in the near future, as evidenced by President Biden’s Supreme Court Reform Commission, which failed to agree on a single major idea. Yet, we must do something to rebalance the overly intrusive role unelected, life-tenured judges play in our country. There is one possible r...

by Michael C. Dorf Since the beginning of Russia's criminal war against Ukraine, I have mostly been writing about other matters. That choice reflects the limits of my own expertise, rather than a judgment about the importance of the issues. Obviously, the war crimes Russia is committing in Ukraine are orders of magnitude more important than undergraduate admissions at elite U.S. colleges , the best characterization of causes of action in federal court , and the other relatively mundane matters I've addressed in the last few weeks. But having resisted the temptation to step outside my lane to this point, today I'll succumb to it. I want to offer a thought about the possible terms of a peace "deal" with Russia. Russian representatives to the diplomatic talks with Ukraine have lately begun to make noises suggesting some amenability to a negotiated resolution to the current conflict. It is too soon to know whether these statements signal a genuine shift. As we have a...