Dorf on Law

[The following essay is by William P. Hausdorff.] Even before the jarring arrival of Trump, it had become increasingly difficult for those of us who travel abroad for work—I’m in the field of international public health—to explain to non-Americans why we periodically put up with literally insane statements and behavior from our highest elected political leaders.  “You know how politicians can be!” is the response that would elicit a (barely understanding) nod.  But of late it has become truly challenging, and perhaps even ominous, to try to explain why this tolerance for nonsense now extends to the more “professional” part of the federal government, the Judiciary.  Why does the often highly critical mainstream media routinely fail to question the basic competence and fundamental integrity of the judges?  I’m not referring to tweets and blog posts, where essentially every opinion under the sun can be found, but rather the New York Times, Washington Post , CNN, Po...

Last week, NY Times investigative journalist Jodi Kantor (best known for her work revealing Harvey Weinstein's predatory history and thus sparking the Me-Too movement) reported that for several days in January 2021--after the insurrection at the Capitol but before the inauguration--an upside-down U.S. flag flew at the home of Justice Samuel Alito. Flying a flag in this manner originated as a naval symbol of distress, but by January 2021 it had also become a symbol of the "Stop the Steal" movement of people who supported Donald Trump's false claim that he was the rightful winner of the 2020 Presidential election. Kantor's original story included Justice Alito's explanation: “I had no involvement whatsoever in the flying of the flag,” Justice Alito said in an emailed statement to The Times. “It was briefly placed by Mrs. Alito in response to a neighbor’s use of objectionable and personally insulting language on yard signs.” The story went on to report that ...

The ruling yesterday in Consumer Financial Protection Bureau (CFPB) v. Community Financial Serv. Ass'n of America, Ltd. brought a sigh of relief to those observers who thought the conservative supermajority on the Supreme Court might just be crazy enough to invalidate a key regulator of the banking industry and call into question the funding for numerous other vital federal agencies. The good news is that the Court reversed the Fifth Circuit's holding that the Constitution's Appropriations Clause forbade Congress from creating a funding mechanism for the CFPB that runs through money earned by the Federal Reserve. The bad news is that any federal judges--the panel below and Justices Alito and Gorsuch in dissent in SCOTUS--credited the challenge at all. Let's start with the merits of the CFPB case, which are so obvious that Justice Thomas wrote the majority. The Appropriations Clause says: "No money shall be drawn from the treasury, but in consequence of appropriat...

Is New York's Justice Juan Merchan playing games to maintain the appearance of being evenhanded?  More generally, do judges have the obligation (or at least a good reason) to take account of how often they are ruling in favor of one side or the other during a trial, being careful to appear to be unbiased by balancing the numbers of favorable and unfavorable rulings so that they are roughly equal? I never thought so, but there is at least some possibility that judges could reasonably feel the need to play that game.  Why?  Because some appellate judges might think that there is some requirement to show that neither side is winning every point, and trial judges might worry that their decisions will be overturned if they always take one side over the other. To be clear, it is not accurate to say that a fair-minded judge is "taking one side" when ruling on any particular question.  Were I to announce that, say, an academic paper arguing in favor of regressive tax cuts is...

Last week, Donald Trump's defense attorneys twice sought a mistrial after Stormy Daniels testified about her 2006 liaison with Trump: once after the direct testimony and then again after cross-examining Daniels. Judge Merchan acknowledged after the direct testimony that Daniels had included a number of extraneous details but ruled that, given the opportunity for cross, her testimony did not warrant a mistrial. Following the defense cross-examination of Daniels--in which the attempted slut-shaming was very much on-brand for a Trump lawyer but also seemed to backfire by bolstering Daniels's credibility--the defense again moved for a mistrial and was again denied. Could that be grounds for reversal on appeal? One reason it might not be is that Trump's lawyers didn't object to some of the most salacious details as the testimony was offered and may have thus not preserved the objections for appeal. However, Alan Dershowitz--who, it should never be forgotten,  heroically refu...

One of the most frustrating aspects of the degradation of US politics is that some very prominent people continue to extol the old rules, acting as if there is not only virtue but an affirmative payoff when politicians and public officials refuse to fight fire with fire.  In the last two weeks, I wrote what turned out to be a series of three columns suggesting that people who are not fascist-curious might soon need to save the rule of law by violating it.  I mostly talked about this in regard to US Democrats' responses to Donald Trump, as well as Canada's two non-Conservative parties' responses to reactionary populism, in both cases noting that the non-reactionary parties seem unprepared to "go there." Here, I want to discuss two specific recent examples of people in positions of responsibility -- one a judge, one a President -- who clearly seem to believe that they will earn points by being restrained and refusing to act unless pushed to the absolute limit.  I...

On Friday, Justice Clarence "I hate D.C." Thomas gave a speech to the Eleventh Circuit Judicial Conference that was so full of anger, false narratives, and whining that it is tragically perfect for the age of Trump. Here are some lowlights annotated. In response to a question about mean spiritedness, he said: “I think there’s challenges to that. We’re in a world and we — certainly my wife and I the last two or three years it’s been — just the nastiness and the lies, it’s just incredible.”   Translation: They would not let my wife and me overturn a Presidential election.  "Reckless" people in Washington, D.C. will " bomb your reputation." Translation : Being the darling of Heritage, Fed Soc, and Fox, and having a former clerk as the 10:00 anchor on Fox, are not enough for this poor little snowflake. “They don’t bomb you necessarily, but they bomb your reputation or your good name or your honor. And that’s not a crime. But they can do as much harm that way....

Much of the public attention recently paid to the campus protests seeking divestment from Israel-linked businesses (and, at some universities, the abolition of joint academic programs with Israeli institutions) has focused on the sometimes-realized potential for conflict between the protesters’ right to free expression—which generally includes a right to say provocatively offensive things—and the Title VI obligation of colleges to avoid permitting their campuses to become a hostile environment for Jewish students. In a Verdict column on that topic last month, I offered some preliminary thoughts. I’ll expand on them in an essay I’m currently writing for a festschrift issue of Constitutional Commentary in honor of Professor Eugene Volokh, whose (extraordinarily large and high quality) volume of work includes substantial attention to the tensions between free speech and anti-discrimination law. In addition to the Constitutional Commentary essay, I shall no doubt revisit the speech/equa...

My latest Verdict column opens with a description of the controversy over South Dakota Governor Kristi Noem's story in her new memoir about how she shot and killed her 14-month-old dog Cricket because Noem is bad at training dogs. That's not how she describes her reasoning, of course. Noem says that Cricket was "untrainable," but presumably that means untrainable by her. In the column, I explain that Noem and other Republicans who have run into trouble for abusing animals over the last couple of decades deserve scorn but--you knew there would be a "but"--that what Noem and the others did to their pets or other animals was really not very different from what the vast majority of people do several times each day when they participate in a food system built on the suffering, exploitation, and killing of animals as innocent as Cricket. The column doesn't offer a psychological explanation for the selective outrage at Noem and her ilk, but it is not difficult...

Many of the judges selected by Leonard Leo and Don McGhan during the Trump years have been acting very badly. A little over a year ago, I documented this terrible behavior by discussing many different judges. For example, Justin Walker was only 37 when he was nominated to be a federal trial judge despite absolutely no trial experience. What Walker possessed were ties to conservative groups, including the Federalist Society. Less than one year later he was confirmed as a judge for the United States Court of Appeals for the District of Columbia Circuit. In his brief time as a district court judge, Walker issued a decision in a case involving COVID restrictions and prayers on Easter Sunday that reads "less like a judicial decision and more like a screed against Democrats published in an outlet like Breitbart." The first seven pages of the opinion rant about Christians and other religious groups suffering major persecution throughout the ages. The last lines of his opinion s...