Dorf on Law

We are close to the twentieth anniversary of John Roberts taking office as the Chief Justice of the United States Supreme Court (September 2005). His Court has done almost unimaginable damage to our country in perhaps the most eventful twenty-year period for the Supreme Court in American history.  The conservative justices have destroyed American civil liberties, the separation of powers, and federalism in ways that have played a major role in bringing us to where we are today -- a few short steps away from a country that resembles fascism more than democracy. Below are my picks for the top ten most destructive constitutional law cases of the Roberts Court in chronological order. It was a hard list to make because there are far more than ten truly terrible cases, and people can reasonably disagree with this list. But this is a blog post, not a law review article. Non-constitutional law cases, such as the Court’s awful administrative law decisions, were not eligible.  One more ...

"The Harvard of the Unwoke" was the unimaginative title of a puff piece about now-former University of Florida (UF) president Ben Sasse.  That op-ed appeared early last year on the notoriously hard-right editorial page of  The Wall Street Journal .  (The column is behind a paywall that I hope no readers will pay to breach).  The idea was that UF was hoping to become to the right what Harvard supposedly was to the left.  The author informed his readers that the stakes were high: "Illiberalism, anti-intellectualism and identity politics were spreading on campus for decades... 'The culture of ideological conformity and monoculture at those schools is unhealthy not just for them, but for the nation at large,' Mr. Sasse says." How quaint.  Sasse is long gone , and the Trumpian right is no longer trying to set up alternatives to the elite institutions that they have habitually smeared.  Instead, they are now busily remaking everything to ...

The Trumpian attack on American universities has been relentless.  Conservatives' ferocious hatred for critical thinking in all its forms has now been yoked to an array of oppressive governmental powers -- lawsuits, funding cuts, the opportunistic use of immigration laws, and on and on.  This will end very badly.  Harvard, which at least held out a bit longer than everyone else, is apparently in negotiations to join its peer institutions in  abjectly prostrating  itself before the country's anti-intellectual powers that be. As I have been arguing relentlessly for months (OK, years), there is no nuance when it comes to Trump's threat to democracy.  I have also tried to make the case that the attack on universities is anything but a sideshow.  That is, the right-wing attacks on universities are important not only to those of use who are directly affected.  More broadly, those attacks are part of their full-on assault on Americans' freedom of though...

Last week on this blog, Professor Segall posed twenty questions about how to teach constitutional law at a time when the Supreme Court has been rapidly reshaping the landscape of legal doctrine in an ideologically conservative direction and the president--with no substantial resistance from the Court or Congress--is implementing an authoritarian agenda. To my mind, the most pressing of the questions Professor Segall raises are numbers 1, 2, 6, and 8, as they all relate specifically to the unique threat that Donald Trump and his administration pose to constitutional democracy. The other questions are important and difficult, but questions like those could have been asked at virtually any time in our history. Although the pace of doctrinal change has picked up in recent years, the notion that the Court moves doctrine in accordance with its ideological druthers is more or less a constant--as Professor Segall's own scholarship shows. Accordingly, for me the main difficulty is figuring...

Before getting to today's topic, I must not allow myself to skip over the news that Donald Trump has now deployed troops in the nation's capital and wrested control of the local police force away from that city's elected government.  He apparently did so because , on a recent outing to play golf, he looked through the window of his limousine and saw some homeless people.  I am not kidding.  In fact, it is somehow even more insane than that.  In the second link above,  The Guardian  notes that Trump's social media announcement of his latest lawless power grab was illustrated with four photographs, all apparently taken from the president’s motorcade along the route from the White House to his golf course. Two of the images showed a total of 10 tents pitched on the grass along a highway on-ramp just over a mile from the White House. The third image showed a single person sleeping on the steps of the American Institute of Pharmacy Building on Const...

The recent SCOTUS decision in Trump v. CASA  forbids federal district courts from issuing universal (sometimes called "nationwide") injunctions against the government except where necessary to grant complete relief to the parties. As readers may recall, Justice Barrett, writing for the majority, invoked the principle announced for the Court by Justice Scalia 26 years earlier in  Grupo Mexicano de Desarrollo, S. A. v. Alliance Bond Fund, Inc.  -- namely, that absent congressional authorization, federal courts can only grant equitable remedies that were traditionally granted by courts of equity at the nation's founding. Much of the disagreement between the majority and dissent concerned whether the traditional "bill of peace" was sufficiently like a universal injunction to validate the latter under the Grupo test. Justice Barrett thought that class actions are the descendants of bills of peace. Justice Sotomayor, for herself and Justices Kagan and Jackson in disse...

Constitutional law professors across the country are starting to prepare their syllabi for the upcoming year. At my school, we have two three-credit courses -- one on structure and one on rights. Other schools have a single four-credit course, and there are other variations as well. Regardless of how the course is taught, I am sure that many folks are struggling like I am to come up with a coherent and correct way to teach the material in the Age of Trump and the Roberts Court. I have little wisdom to offer other than a series of questions I think we all need to think about. In future posts, I might try to address some of these but for now, "just the questions," not the answers. This list, of course, is not meant to be comprehensive, which is actually sad, given its length. 1) Do we teach that we are living in unique times with a unique President raising unique separation of powers, federalism, and rights issues? If so, how do we deal with pro-MAGA students? 2) Do we raise th...

Last week, the GOP-led Senate confirmed Emil Bove to a judgeship on the U.S. Court of Appeals for the Third Circuit. This was despite credible allegations that he was involved in the rank corruption leading to the dismissal of the charges against Mayor Eric Adams, and despite reports by whistleblowers that he had plotted contemptuous disobedience of various court orders, with a colorful catchphrase. A federal judge’s tenure is for life, and Emil Bove is young. Moreover, impeachment and conviction are practical impossibilities for the foreseeable future. So what does one do? Most of us just have to grind our teeth. But if you’re a judge on the Third Circuit, and you agree that Bove is unqualified, then there is another option. That is to treat Bove’s actions on the Third Circuit as a complete nullity. How would that work? As background, on the federal appeals courts, most decisions are made by randomly selected three-judge panels. Those are then subject to potential en banc review—th...

Today, I'll be participating in the 27th annual  Practicing Law Institute Supreme Court Review --as I have done for each of the past 26 years. It is almost surely too late for anyone learning about this one-day event to hustle over to PLI headquarters in midtown Manhattan in time for the first panel (which starts at 9 am), but a recording the full program will be available afterwards on demand. This year, as always, there's a great lineup of speakers, with Master of Ceremonies Berkeley Law Dean Erwin Chemerinsky and co-chair Professor Marty Schwartz running the show. It's a great way to catch up on your Continuing Legal Education obligations. Okay, that's enough advertising. Now onto some substantive thoughts. The format for the panels allocates presenter roles and commenter roles. I'll be commenting on most of the panels and presenting on  United States v. Skrmetti  during the second morning panel. As readers likely recall, in  Skrmetti  Chief Justice Roberts, ...