Dorf on Law

Between now and the end of the term, the Supreme Court will issue decisions concerning abortion, guns, administrative law, and Trump, Trump, and more Trump. (In addition to the high-profile cases, for example, today the Court hears oral argument in a case that tests whether the statute used to try January 6 defendants applies to their conduct.) My guess is that a lot of pain is coming our way as we head towards that great artificial deadline the justices created for themselves known as "June." As we are in a bit of a holding pattern with tornado-type turbulence surrounding us, I thought I'd provide a bit of, let's call it legal levity, as we wait for the Court to inflict pain on our people and our country. Here are ten fascinating facts about SCOTUS you might not know. 1.      MARBURY V. MADISON: THE POLITICAL TURNS PERSONAL AND THE PERSONAL TURNS  POLITICAL Most academics view much of Marbury v. Madison skeptically for many reasons, including that Chief Justice Jo...

The death of O.J. Simpson last week provides an occasion for reflecting on the decade in which his murder trial not only occurred but which in some ways it defined. I'll focus today's essay on the ways in which the Simpson case reflects a larger pattern of American racial amnesia. The irony of Simpson's legal team "playing the race card" was not lost on many commentators. O.J. Simpson was not unique in his ability to appeal to white Americans. Other Black athletes achieved similar levels of acceptance. But O.J. was among the most successful at it. If Mohammed Ali was the sports version of Malcolm X of the late 1960s and 1970s, the Juice was (what we now pretend was) the period's MLK Jr. It is difficult to think of any Black public figure of the time who was as beloved and accepted by white Americans. Bill Cosby (whose predatory behavior would not be widely known for decades) also makes the cut, but it is a very short list. Yet to see the use of race by Simpso...

[Note to readers: Three days ago, I published a column under the headline, "Two Outside Influences (Beyond the Obvious One) That Are Harming Higher Education."  Because that column was quite long, and because the headline was more than a bit opaque, I am breaking the column into two parts and publishing them under new titles.   I have thus gone back and edited Tuesday's column to include only the material relating to college sports, while today's column discussing the madness of university rankings appears below (with a short new intro).  For those of you who said of Tuesday's column, "Too long, didn't read," this is a second bite at the apple.]   This column continues my two-part discussion of the factors other than Republican anti - intellectualism that are harming higher education in the US.  Beyond the toxic effect that the full professionalization of college sports is having on the university landscape, which I discussed in Part 1 on Tue...

In his guest post on this blog last week, Professor Sobkowski critiqued Jesse Wegman's New York Times op-ed discussing the "crisis in teaching constitutional law."  Wegman blasted the Roberts Court for issuing a series of highly partisan, poorly reasoned constitutional decisions.  The Supreme Court, Sobkowski responded, has always been political.  If anything, the Roberts Court today is merely following the lead of the Warren Court, which "embraced judicial supremacy" and took it upon itself to "refashion the Constitution to meet contemporary needs."  Professor Dorf responded to Sobkowski by pointing out important ways in which the Roberts Court differs from its predecessors, including the Warren Court.  While acknowledging the legitimacy of Sobkowski's basic premise--values, after all, have always affected the Court's work--Dorf suggested that the Roberts Court also differs from earlier Courts in important respects.  For example, as John H...

My latest Verdict column  discusses last week's ruling by a state appeals court upholding a preliminary injunction against the application of Indiana's restrictive abortion law to plaintiffs who claim that under certain circumstances it would violate their religious freedom. The decision rests on the state's Religious Freedom Restoration Act (RFRA), which, as I explain in the column, is materially identical to the federal RFRA. The column focuses chiefly on the court's substantive analysis, but much of the opinion addresses procedural issues. In today's essay, I'll say a bit more about one of those issues: legal standing based on a law's chilling effect. The state objected to the plaintiffs' standing by pointing out that none of them was pregnant and thus none of them was currently seeking an abortion. This objection could be characterized as going to standing--which typically requires a reasonable fear of an imminent  injury as the basis for standing f...

[Note to readers: Three days ago, I published a column under the headline, "Two Outside Influences (Beyond the Obvious One) That Are Harming Higher Education."  Because that column was quite long, and because the headline did not adequately communicate the content of the column, I am breaking the column into two parts and publishing them under new titles.  I have thus edited what is now Part 1 below to include only the material relating to college sports, while Friday's column discusses the madness of university rankings (with a brief new intro).]   To be clear from the start, the major threat to higher education in the United States today is the intensifying anti-intellectualism of the Republican Party.  I have written about this extensively, of course, in part because the especially ridiculous version of that anti-intellectualism in Florida was the proximate cause of my decision to " retire " early and ultimately to move out of the state and country.  And...

Last week I had the great pleasure of discussing the role of history and tradition in constitutional interpretation with Professor Larry Solum at an event sponsored by Southern Methodist University. Also last week Professor  Marc O. De Girolami  penned an op-Ed in the New York times arguing that recent important Supreme Court cases including the landmark opinions in  Dobbs and Bruen rely on history and tradition in ways that are substantially different from both prior cases and originalism.  According to Professor De Girolami, the conservative justices (or at least some of them) have " indicated time and again that the meaning and law of the Constitution is often to be determined as much by enduring political and cultural practices as by the original meaning of its words.  The fact that the Supreme Court seems to be finding its way toward an open embrace of traditionalism should be broadly celebrated." Professor De Girolami is correct that this new emerging ju...

In his inimitable fashion, Donald Trump continues to engage in projection when it comes to autocratic threats to the rule of law in the US (and, if he has anything to say about it, in Europe and everywhere else).  He says , for example, that the Democrats are rigging the election and will do anything to steal it, which is certainly galling and shameless.  He also gleefully tosses in the word "fascist" on his laundry list of insults ( see , e.g., his wailing about the "radical left Democrats, Marxists, communists, and fascists" who torment him so). Escalating the projection, Trump recently said this : "If we don't win this election, I don't think you're going to have another election in this country."  He has also added this variant: "I don’t think you’re going to have another election, or certainly not an election that’s meaningful."  And in his signature "tell" (much like his "Trust me" line whenever he is telli...