Cornell Law professor Michael C. Dorf comments on the Alabama Supreme Court’s decision last week in LePage v. Center for Reproductive Medicine, P.C., in which it equates frozen embryos with “extraeuterine children,” thereby using fetal personhood rhetoric to jeopardize IVF practices. Professor Dorf argues that this reasoning not only undermines prospective parents’ freedoms but also reflects a flawed understanding of rights as zero-sum, contrasting sharply with instances where expanding rights can enhance societal well-being.
Cornell Law professor Michael C. Dorf comments on last week’s Supreme Court oral arguments in Trump v. Anderson, in which the Justices seemed inclined to overturn the Colorado Supreme Court’s decision that disqualified Donald Trump from the state’s Republican primary under the Fourteenth Amendment for “engaging in insurrection.” Professor Dorf points out that the Justices’ questioning revealed a spectrum of potential rationales, from concerns over political retribution and the historical interpretation of Section 3 of the Fourteenth Amendment to structural arguments about federal versus state authority in determining a candidate’s eligibility for the presidency.
Cornell Law professor Michael C. Dorf discusses the recent execution of Kenneth Eugene Smith by nitrogen hypoxia in Alabama, questioning the humanity of this method and comparing it unfavorably to other methods like lethal injection and electrocution. Professor Dorf delves into the complexities of the death penalty, including the constitutional implications, the effectiveness of alternative execution methods, and the ethical dilemmas facing death penalty abolitionists and pharmaceutical companies regarding the provision of more humane execution drugs.
Cornell Law professor Michael C. Dorf discusses Republicans’ political manipulation of the impeachment process, particularly in the context of Donald Trump’s flawed immunity claims and House Republicans’ baseless impeachment investigations against President Joe Biden and Homeland Security Secretary Alejandro Mayorkas. Professor Dorf emphasizes that impeachment should be grounded in actual high crimes and misdemeanors, not political disagreements or policy choices.
Cornell Law professor Michael C. Dorf points out that the U.S. Supreme Court faces critical decisions in two cases involving former President Donald Trump: one regarding his claim of absolute immunity against charges for his role in attempting to overturn the 2020 election, and the other concerning his eligibility for the Presidency under Section 3 of the Fourteenth Amendment. Professor Dorf argues that despite Trump’s legal team arguing for more time due to the complexity of the immunity case, the Court should expedite its review in both cases, given the urgency of presidential primaries and the weak nature of Trump’s claims, especially against the well-founded argument that he is ineligible under the Fourteenth Amendment due to insurrectionist activities.
Cornell Law professor Michael C. Dorf discusses the Supreme Court’s refusal to hear a case challenging Washington State’s ban on conversion therapy, Tingley v. Ferguson, and specifically the implications of the dissent from Justices Clarence Thomas and Samuel Alito. Professor Dorf explains that their dissenting opinion demonstrates their willingness to invalidate such bans based on free speech, a stance that could undermine the regulation of medical practices. Professor Dorf points out that while a circuit split exists on the legality of conversion therapy bans, the broader concern is the potential impact of the Justices’ views on medical regulation, including recent decisions regarding access to abortion medication like mifepristone.
Cornell Law professor Michael C. Dorf comments on the pending U.S. Supreme Court case SEC v. Jarkesy, which questions the constitutionality of administrative law judges (ALJs) in the SEC and their role in enforcing securities laws. While Professor Dorf believes the Court should reject all three constitutional challenges presented in the case, he suggests that if the Court does rule against the government, the least disruptive outcome would be based on the removal issue rather than the Seventh Amendment or nondelegation claims.
Cornell Law professor Michael C. Dorf argues that the Supreme Court’s new Code of Conduct, despite being a step towards addressing ethical concerns, is insufficient due to its lack of enforcement mechanisms and the Court’s history of questionable conduct. Professor Dorf suggests that, despite Justice Alito’s assertion to the contrary, Congress has the authority to impose stricter ethical rules on the Supreme Court and could even explore innovative solutions like a “pinch-hitter” system using retired Justices or federal appeals court judges to address recusal challenges.
Cornell Law professor Michael C. Dorf comments on last week’s conviction of Sam Bankman-Fried on fraud charges related to the operations of his cryptocurrency platform, FTX. Professor Dorf notes that while some view him as a contemporary Robin Hood, given his donations to effective altruistic causes, his actions raise questions about the line between altruism and criminality.
Cornell Law professor Michael C. Dorf discusses the effect and implications of Texas’s SB8 law and Missouri’s Second Amendment Preservation Act (SAPA) on federal law and the judiciary. Professor Dorf argues that both laws employ a strategy to circumvent federal court review, but suggests there may be growing recognition among Supreme Court Justices of the dangers posed by such laws, which seek to undermine federal authority and judicial review.
Cornell Law professor Michael C. Dorf analyzes whether the U.S. House of Representatives can choose a Speaker who is not a current member of Congress. While conventional wisdom suggests that a non-member could serve as Speaker due to the lack of explicit qualifications in the Constitution, Professor Dorf argues that this interpretation may be faulty, citing original understanding, historical practice, and functional considerations. Professor Dorf concludes that while the Constitution is unclear on this issue, the absence of explicit language should not be taken as carte blanche to make any choice, and that both liberals and conservatives should be cautious in their assumptions about what the Constitution does or does not allow.
Cornell Law professor Michael C. Dorf discusses the indictment against New Jersey Democratic Senator Robert Menendez, who is accused of accepting bribes to influence foreign relations and other matters. Professor Dorf acknowledges the legal presumption of innocence in a criminal trial setting but argues that due to the ethical responsibility Senators have towards their constituents and the country, they are not entitled to the same presumption in their role, and the weight of the allegations and evidence against Menendez should prompt his resignation or expulsion from the Senate.
Cornell Law professor Michael C. Dorf discusses a recent legal battle over Texas’s placement of buoys and barriers in the Rio Grande River to deter migrants, a move ruled likely unlawful by Federal District Judge David Ezra. Professor Dorf criticizes Texas’s subsequent emergency stay appeal, argues that the state’s legal justifications are implausible and undermine federal supremacy, and suggests that the state is improperly attempting to sidestep federal authority on issues of national security and immigration.
Cornell Law professor Michael C. Dorf argues that while the recent departure of Stanford’s associate dean for Diversity, Equity, and Inclusion (DEI) is noteworthy, the broader issue is the legal status of diversity initiatives following the recent Supreme Court ruling in Students for Fair Admissions v. President and Fellows of Harvard College. Professor Dorf contends that despite the Court’s skepticism towards race-based affirmative action, DEI offices still have a legitimate role, albeit one that may need to adjust its approaches to promoting diversity and inclusion.
Cornell Law professor Michael C. Dorf responds to a recent Wall Street Journal “puff piece” on U.S. Supreme Court Justice Samuel Alito, arguing that, contrary to the op-ed authors’ assertion, Justice Alito’s purported commitment to textualism is disingenuous and that he finds ways (atextually, if needed) to vote consistently for ideologically conservative outcomes. Professor Dorf refutes Justice Alito’s claim that Congress lacks the authority to impose ethical standards on the Supreme Court, pointing out Congress’s historical role in shaping the Court and the existing ethics regulations that apply to the Justices.
Cornell Law professor Michael C. Dorf criticizes Florida’s new middle school social studies education standards, which suggest that enslaved people benefited from slavery in some instances by learning skills such as carpentry or blacksmithing that they could later use for personal benefit. Professor Dorf argues that this perspective dangerously minimizes the horrors of slavery, and could be a calculated move by political figures like Governor Ron DeSantis to leverage culture war issues, distort historical truths, and consolidate power.
Cornell Law professor Michael C. Dorf considers the implications of ChatGPT and other generative AI tools in law schools. Professor Dorf observes that for now, smart, well-motivated students will outperform AI in most tasks required of law students, but legal educators will soon have to grapple with the reality that banning AI-based tools will make less and less sense as they become more mainstream various ways in legal practice.
Cornell Law professor Michael C. Dorf contrasts the present Supreme Court with the one Yale Law Professor Alexander Bickel praised in a Harvard Law Review article in 1961. Unlike the Court Bickel described, which manipulated its docket to strategically avoid difficult and divisive issues, Professor Dorf argues that the present Court manipulates its docket to decide those issues—and often without full briefing or oral argument.
Cornell Law professor Michael C. Dorf comments on the so-called “unitary executive theory” and explains why it seems to form the basis for the extreme positions of conservative Justices on the U.S. Supreme Court. Professor Dorf argues that the conservative Justices may prefer to pursue their ideological goal of undercutting regulation via the dubious unitary executive theory rather than originalism, further undercutting the administrative state.
In this second of a series of columns conducting a postmortem on the debt ceiling crisis, UF Levin College of Law professor and economist Neil H. Buchanan and Cornell Law professor Michael C. Dorf explain why the temporary resolution of the debt ceiling crisis may result in an even higher cost when the issue arises again on January 2, 2025. Professors Buchanan and Dorf argue that the debt ceiling statute can only ever operate as a source of leverage for extortionists or, if neither side blinks, as the means of inflicting terrible damage to the country.
