Cornell Law professor Michael C. Dorf explains how Congress can (and argues that it should) protect affirmative action in private colleges and universities in light of the supermajority of the Supreme Court that seems hostile to affirmative action. Professor Dorf points out that even if his suggestion seems far-fetched in the current political climate, urgent calls for action now can effectively arm advocates to effect change when they are better positioned to do so in the future.
Cornell Law professor Michael C. Dorf comments on a recent decision by a federal district judge in Texas holding that a for-profit corporation was entitled to an exception from the legal obligation to provide employees with health insurance covering pre-exposure prophylaxis (PrEP), which protections against infection with HIV/AIDS. Professor Dorf explains the absurdity of the court’s conclusion, which is based on an extension of the Supreme Court’s dubious logic in Burwell v. Hobby Lobby.
Cornell Law professor Michael C. Dorf comments on a case currently before the U.S. Supreme Court involving a challenge by the pork industry to a California law—Proposition 12—that was adopted by referendum in 2018. Professor Dorf explains why Supreme Court should uphold Prop 12 against the plaintiffs’ “dormant” Commerce Clause claims, and he considers the implications of that holding on state power to ban abortion pills from other states.
Cornell Law professor Michael C. Dorf comments on the possible significance of the Supreme Court’s decision to divide, rather than consolidate, argument in the affirmative action cases it will be deciding next term. Professor Dorf suggests the decision would allow Justice Ketanji Brown Jackson to participate in one of the cases and could also allow the Court to attend to at least two important factual and legal differences between the two cases.
Cornell Law professor Michael C. Dorf comments on Twitter’s lawsuit against Elon Musk over Musk’s announcement that he was terminating his April agreement to purchase the company for $44 billion. Professor Dorf describes how Musk’s bully-like behavior is reminiscent of Donald Trump’s and describes the possible (and likely) remedies the Delaware court might deem appropriate.
Cornell Law professor Michael C. Dorf argues that Justice Samuel Alito's majority opinion in Dobbs v. Jackson Women’s Health Organization eliminating the constitutional right to abortion misused pro-choice scholars’ work in an attempt to justify overturning Roe Casey. Professor Dorf observes that by pointing readers to the body of work by Justice Ruth Bader Ginsburg, Professor John Hart Ely, and other pro-choice scholars, Justice Alito effectively calls attention to their robust defense of abortion rights as essential to sex equality and an account of how the current hyper-conservative Court’s rulings are profoundly illegitimate.
Cornell Law professor Michael C. Dorf comments on the Supreme Court’s opinion in New York State Rifle & Pistol Assn., Inc. v. Bruen invalidating a New York law restricting licenses to carry concealed handguns to persons able to demonstrate a “special need” for one. Professor Dorf explains that the majority opinion adopts a methodology that focuses exclusively on history, which he argues could make it nearly impossible for government to protect people from new threats due to gun violence.
Cornell Law professor Michael C. Dorf comments on a recent decision by the New York Court of Appeals ruling that Happy, an Asian elephant who has been imprisoned at the Bronx Zoo for nearly her entire half-century of existence—was not entitled to the writ of habeas corpus. Professor Dorf points out the questionable logic and errors that led the court to its conclusion and suggests that, despite the sad ending for Happy, her case might mark a turning point in the legal rights of nonhuman animals, evidenced by the thoughtful and compassionate dissent by two members of that court.
Cornell Law professor Michael C. Dorf argues that while the Supreme Court’s investigation into who leaked Justice Samuel Alito’s draft opinion overruling Roe v. Wade may be legal, it is also highly hypocritical in at least two respects. Professor Dorf argues that the investigation violates the spirit (and perhaps even the letter) of the Court’s Fourth Amendment cases, and it amounts to self-dealing because it focuses on the clerks, but not the Justices or their spouses.
In light of the leaked Supreme Court opinion in Dobbs v. Jackson Women’s Health Org. and the resulting protests in front of the homes of some of the Justices, Cornell Law professor Michael C. Dorf considers where, if anywhere, protests against judicial decisions are appropriate. Professor Dorf notes that under current law, the First Amendment as currently construed by the Supreme Court seems to protect a right to peaceable protest near the home of a judge or Justice so long as: (a) the protesters merely pass by but do not linger at the home; and (b) they do so without the intent to intimidate. However, Professor Dorf also points out that such protest might not always be tactically prudent.
In response to the leaked draft opinion by Justice Samuel Alito in Dobbs v. Jackson Women’s Health Org., Cornell Law professor Michael C. Dorf comments on the likely ramifications of the Supreme Court’s overruling Roe v. Wade, the seminal case recognizing the constitutional right to seek an abortion. Professor Dorf argues that the language and reasoning of the draft suggest that this emboldened Court with a super-majority of Republican appointees is also preparing to overrule Lawrence v. Texas (recognizing the right of consenting adults to engage in same-sex sexual conduct) and Obergefell v. Hodges (recognizing the right of same-sex couples to marry).
Cornell Law professor Michael C. Dorf comments on the recent decision by U.S. District Judge Kathryn Kimball Mizelle invalidating the federal mask mandate for travelers. Professor Dorf points out the flaws in Judge Mizelle’s reasoning and argues that her ruling reflects a right-wing ideology that is hostile to government agencies addressing even the most pressing social problems.
Cornell Law professor Michael C. Dorf explains how the U.S. Supreme Court’s recent seemingly inconsistent decisions in Ramirez v. Collier and Austin v. U.S. Navy Seals 1–26can be reconciled by examining the nature of the government interests in each case. Professor Dorf points out that while the Court has held judicial deference to prison officials’ expert judgment on security questions impermissible under RLUIPA, it has not (and did not in the Navy Seals case) decided whether deference to the military is compatible with RFRA and whether, if not, RFRA is unconstitutional.
In light of the recent Supreme Court confirmation hearing of Judge Ketanji Brown Jackson, Cornell Law professor Michael C. Dorf explains why judges across the ideological spectrum embrace the judicial philosophy of originalism. Professor Dorf points out that today’s version of originalism leaves judges and justices substantial room to make judgments based on their values.
Cornell Law professor Michael C. Dorf comments on two cases the U.S. Supreme Court recently decided that involve the “state secrets privilege.” Professor Dorf argues that the cases demonstrate that the executive branch (regardless of whether the president is a Republican or a Democrat) will go as far as the courts allow with the public secrets privilege, so it falls to Congress to rein it in.
Cornell Law professor Michael C. Dorf comments on the recent proposal to pass legislation ending legacy and donor preferences in college admissions. Professor Dorf explains the context and rationale for the proposal and describes some potential perverse effects it might have, but he concludes that its potential benefits likely outweigh these drawbacks.
Cornell Law professor Michael C. Dorf argues that Chief Justice John Roberts is, perhaps surprisingly, on the left of the current Court partly because of the Court moving far to the right in recent years and partly because of Roberts’s evolution as a jurist. Professor Dorf explores why Roberts has shifted, noting that he seems simply to adhere to a principle that historically liberals, moderates, and conservatives all agreed upon: don’t lie about the law.
In light of the news of Justice Stephen Breyer’s imminent retirement, Cornell Law professor Michael C. Dorf reflects on Justice Breyer’s career. Professor Dorf observes that Justice Breyer lacks a distinctive legacy largely for two reasons: (1) he was junior to O’Connor, Kennedy, and Ginsburg for their time on the Court together and thus did not get key liberal assignments, and (2) as a pragmatist and compromiser, his reasoning relied more on nuance than on bold strokes.
Cornell law professor Michael C. Dorf asks whether we can trust that Justice Neil Gorsuch—who was the sole Justice not to wear a mask during oral arguments last week—was unbiased in considering two challenges to the Biden administration’s vaccine mandates. Professor Dorf argues that Justice Gorsuch’s refusal to wear a mask indicates that he either does not believe the public health guidance or thinks he should be free to decide for himself whether to follow it—both of which possibilities undercut public confidence in the basis for his votes in the vaccine cases.
In light of the approaching one-year anniversary of the January 6 Capitol Insurrection, Cornell law professor Michael C. Dorf argues that the next assault on American democracy could come from within the Capitol and other institutions of American democracy. Professor Dorf points out that the phrase “political violence” is an oxymoron in the context of a democracy; to practice democratic politics is to accept a common set of ground rules for resolving policy disputes peacefully, and when the loser of an election uses violence to try to change the result, democratic politics ceases functioning.