Dorf on Law

  by Michael C. Dorf This little post is not intended as a summary of the whole Term, just today. Here goes: (1) It was terrible, but it could have been worse. The Court in Biden v. Texas allowed the administration to end "Remain in Mexico." The idea that this cruel policy--pursued by no administration prior to Trump's--was statutorily required all along was unbelievable. And the Court's holding was simply that the word "may" means "may," not "must." So of course the case barely came out the right way, with Justices Thomas, Alito, Gorsuch, and Barrett dissenting. (2) West Virginia v. EPA is very bad news for the planet and for regulation more generally. Justice Kagan is a bit too cute in dissent in pointing out that the Court had never before used the term "major questions doctrine." The basic idea was established in prior cases, but she and Justices Breyer and Sotomayor, who joined her dissent, are right that the Court has ex...

  by Michael C. Dorf In a few hours, SCOTUS will end its Term, Justice Breyer will officially step down, and Justice Jackson will shortly be sworn in. The two remaining cases on the docket will be handed down. Those cases provide the Justices with an opportunity to further tear the fabric of American law, perhaps by eliminating Chevron deference to administrative agencies, perhaps by reviving the non-delegation doctrine, or perhaps by so inflating the major questions doctrine as to effectively kneecap the administrative state without formally acknowledging as much. Should something along those lines emerge from One First Street, I may write a second blog post today. Meanwhile, I want to take a few moments to celebrate a rare victory for sanity and decency yesterday in Torres v. Texas Dep't of Public Safety . By 5-4, the Court (Breyer, joined by Roberts, Sotomayor, Kagan, and Kavanaugh) upheld the application of the Uniformed Services Employment and Reemployment Rights Act (USE...

Note to readers: Last Thursday (June 23), I published a new Verdict column, " Social Security’s Good News is Good News ," in which I took my yearly look at the health of the world's most successful social program.  After demonstrating that the latest annual forecasts from the Social Security Trustees are even better news than usual -- and that the political hit job on Social Security continues to be based on neither evidence nor logic -- I also gamely offered the optimistic argument that Social Security (and even Medicare) might survive after the Republicans finish turning the United States into a one-party autocracy. I have no further thoughts on that topic right now.  When the Dobbs decision became a reality, I shared Professor Dorf's immediate sentiments (" Ugh ") and called it a (very bad) week without writing my usual second Dorf on Law column.  Today, I will continue to distract myself from our Court-ordered dystopia (and reports about the plate-t...

 by Sherry F. Colb I have written quite a few posts about Dobbs v. Jackson Women's Health Organization  in these pages. With the luxury of time and space, I was able to elaborate both the foundation of my view that women have a strong interest in expelling an unwanted zygote/embryo/fetus from their bodies and the reason why a zygote should not have the status of a being with rights. Last week, I received an invitation to write an op-ed for Fox News about the abortion decision. I knew that I could not take on the entire issue in 600-800 words, so I decided to focus on Samuel Alito's (SA's) complete failure to consider the costs in pain and risk and hardship that pregnancy--and especially unwanted pregnancy--entails. I put the status of the zygote/embryo/fetus to one side, in other words, and concentrated on the pregnant woman's side of the balance. No one will be surprised to learn that I received some hate mail highlighting my stupidity, my dishonesty, and the likeliho...

 By Eric Segall Last week the Supreme Court issued three rulings that dramatically changed constitutional law in this country for the worse. The three liberals dissented in all three cases. The ultra-conservative Supreme Court majority lowered the wall of separation between church and state, limited the ability of states to pass reasonable gun laws, and reversed Roe v. Wade and returned the issue of abortion to the states (or potentially Congress). My very sad observations are below.

 by Sherry F. Colb This week, the Supreme Court held that New York State's limits on concealed carry are unconstitutional under the Second and Fourteenth Amendments. Anyone who is being honest will acknowledge that those who framed and ratified the Second and Fourteenth Amendments had no expectation that the constitutional protection would extend without limits to those carrying concealed firearms on their person. That is perhaps why a group of people who are actually knowledgeable and competent on the history submitted an amicus brief explaining that the historical evidence does not do what the six ideologues on the Court want it to do. What bothered Justice Clarence Thomas (CT) about the New York law that he and his fellow power-judges invalidated was the requirement that a person who seeks a license to carry a concealed weapon in public demonstrate that they have an elevated need for a gun they might use in self-defense. Such a requirement, according to CT, demotes the Second A...

  by Michael C. Dorf The leaked opinion in Dobbs is now the law of the land . I haven't read enough of it yet to know whether there are differences from what we saw last month to the final version, but it hardly matters. My co-bloggers and I will have more to say about this travesty in the days, weeks, and months ahead, but for now, ugh. Meanwhile, you can read my Verdict column on yesterday's gun ruling here . Also ugh.

 by Sherry F. Colb When we talk about rights--who has them and who does not--we often refer to a broad range of entitlements, some of which are quite basic and others relatively limited in their application. In this post, I want to talk about the most basic of rights that anyone who could be considered "someone" ought to have, regardless of their intelligence, their long-term memory, their status as a loner versus a member of a community, and other characteristics that one might require before bestowing some rights. I refer here to the right to protection against the violence of others, with violence referring to assault and battery, torture, unnecessary incarceration, and murder. Even if you are not terribly bright, have few or no friends, never earn any taxable income, and delight in your illiteracy, you nonetheless have a right not to be subjected to violence of the sort enumerated in the last sentence. Indeed, if anyone suggested that it is acceptable to assault you, to t...

  by Michael C. Dorf Because of its low population density, Maine cannot afford to provide local public schools for all children in the state. Instead, parents of students in various rural districts throughout the state can receive tuition assistance (what I'll call vouchers) to pay for (some, most, or all of, depending on tuition) their children's education at an accredited private school, so long as the education the school provides is "nonsectarian," i.e., not religious. Until twenty years ago--when the Supreme Court decided Zelman v. Simmons-Harris -- it would have been very plausible to argue that Maine's exclusion of religious schools from its voucher program was constitutionally required by the First Amendment's Establishment Clause. Zelman rejected that view and upheld what the Court deemed a neutrally structured system of vouchers that were redeemable at religious along with secular schools. Yesterday's 6-3 ruling in  Carson v. Makin   held that t...

by Neil H. Buchanan     In a growing but unplanned series of columns, I have been engaging in a post mortem of sorts on the American experiment, which is clearly in its final death throes.  One particularly interesting question is the amount of blame that establishment Democrats bear for the ongoing tragedy.  Although one might argue that there was never truly any way to prevent the Republicans from using the deeply antidemocratic flaws in the Constitution to create their one-party autocracy, I suspect otherwise.  In any event, there have certainly been plenty of times in which the nominally liberal party's leaders did nothing while the system was being destroyed under their noses. In a new Verdict column today, I offer something of a mash-up of two very different examples of the bad instincts of many liberals and Democrats.  Specifically, I point out that the center-left's blithe agreement with the Republicans' framing of the political correctness/cance...