Cornell law professor Michael C. Dorf discusses the double jeopardy question raised in Gamble v. United States, in which the US Supreme Court heard oral arguments last week, and explains how the extraordinary nature of the Trump presidency should inform judicial decision making. Building upon a point made in a 1985 Columbia Law Review article by Professor Vincent Blasi, Dorf argues that judges construing the Constitution and other legal texts in perilous times such as these should keep in mind that the rules they adopt will also operate in normal times.
Cornell law professor Michael C. Dorf discusses the Department of Education’s recent Notice of Proposed Rulemaking rules requiring due process protections for those accused of sexual assault or harassment in Title IX cases. Dorf provides a history of Title IX, explaining how the Obama administration issued guidance and instituted reforms to how institutions should approach addressing allegations of such conduct. He acknowledges the Department of Education's shift in policy under the Trump administration that led to its proposed rulemaking issuance, and argues that the Department only has the authority to permit these additional due process protections in most instances, rather than outright require institutions to adhere to them.
Cornell law professor Michael C. Dorf considers the legality of President Donald Trump’s firing of US Attorney General Jeff Sessions and designating Matthew Whitaker as Acting Attorney General. Dorf points out that while the Constitution does not expressly address acting officers, Trump’s actions certainly violate the spirit of the law and the Constitution.
Cornell law professor Michael C. Dorf comments on the announcement that retired Supreme Court Justice Sandra Day O’Connor would be withdrawing from public life and explains how, ironically, the exit of President Ronald Reagan’s Supreme Court nominees is giving rise to what could be called the Reagan Court. Dorf describes Reagan’s successes and failures with respect to shaping the Court and explains why only now, with its present composition, the Court may actually be poised to further Reagan’s agenda.
Cornell law professor Michael C. Dorf debunks President Trump’s claim that he has kept his campaign promise to “protect coverage for patients with pre-existing conditions.” Dorf provides three primary reasons that the claim is dishonest: the administration’s position in a pending lawsuit; the GOP’s proposed alternative, which does not require insurance companies to offer policies that actually cover pre-existing conditions, and the claim that Democratic support of Medicare for All is “radical socialism.”
Cornell law professor Michael C. Dorf anticipates the possible next steps in the federal government’s lawsuit against California over the state’s new law mandating net neutrality. Dorf explains why, if conservative scholars and Supreme Court justices succeed in what seems to be their goal of weakening federal regulatory agencies, that could ironically be a boon to net neutrality and to government regulation more broadly.
Cornell law professor Michael C. Dorf considers whether a vegan generally, and New Jersey Democratic Senator Cory Booker specifically, would have a shot of winning the presidency in 2020. Dorf explains how food plays an important role in politics and considers whether the election of a vegan to the highest office in the land is likely to hurt or help the vegan movement.
Cornell law professor Michael C. Dorf explains why President Trump can unilaterally undermine NAFTA but cannot act to replace it without help from Congress. Dorf distinguishes treaties from “congressional-executive agreements” (NAFTA is an example of the latter), and he points out that any new agreement Trump seeks to enter with Canada and Mexico that differs in any substantial way from NAFTA can only become effective upon the passage of new legislation by Congress.
Cornell law professor Michael C. Dorf comments on the recently publicized memorandum Brett Kavanaugh wrote in 1998 in the course of his work for Independent Counsel Kenneth Starr, who was conducting the investigation of President Bill Clinton. Dorf points out that the sexually explicit questions Kavanaugh proposed in his memo should have been ruled inadmissible under applicable procedural rules. Inspired by Kavanaugh’s own line of questioning, Dorf concludes by proposing a question that he calls upon a senator to ask Judge Kavanaugh during his nomination hearing.
Cornell law professor Michael C. Dorf describes why he chose not to join the 72 other former law clerks of Justice Anthony Kennedy who signed a letter urging the confirmation of Judge Brett Kavanaugh. Dorf explains that the letter is at best misleading, and he argues that while a norm of deference may be preferable, that norm no longer exists, and deference to the president’s choice in this age of extreme polarization would amount to unilateral Democratic disarmament.
Cornell law professor Michael C. Dorf explains why the FDA’s recent announcement that it intends to restrict the word “milk” on food labels may present First Amendment issues. Dorf points to the US Supreme Court’s decision last year in Matal v. Tam—which rejected the Patent and Trademark Office’s denial of a trademark to a band on the ground that the name was offensive—as evidence of the Court’s skepticism about the government making ideological judgments in the grant or denial of rights to exclusive use of a word.
Cornell law professor Michael C. Dorf comments on the suggestion that liberals who are distressed about the impending era of reactionary US Supreme Court jurisprudence should focus efforts on change at the level of state supreme courts. Without discouraging such efforts, Dorf explains why this approach faces significant obstacles, and he argues that anyone concerned about the direction of the Court should not restrict their political activities to judicial elections but engage in organized opposition on multiple fronts.
Cornell law professor Michael C. Dorf condemns the Supreme Court’s 5–4 decision upholding President Trump’s travel ban but describes a few silver linings that the ruling contains. Specifically, Dorf points out that the majority left open the possibility of future litigation challenging allegedly unlawful border policies, explicitly overruled its decision in Korematsu v. United States (which upheld the internment of Japanese Americans during World War II), denounced President Trump’s anti-Muslim statements, and served as a clear reminder that We The People can and should hold our elected official accountable for enacting or supporting abominable policies.
Cornell law professor Michael C. Dorf argues that the form of originalism typically espoused by scholars—in which constitutional interpretation aims to recover the original public meaning of the text—often ends up being abused in practice. Judges and justices borrow the respectability of public meaning originalism to justify a generally discredited form of originalism that seeks answers in the framers’ and ratifiers’ intentions and expectations. To illustrate this point, Dorf points to Justice Gorsuch’s recent dissent in Sveen v. Melin, which looks not to the text of the Contracts Clause but to what Justice Gorsuch inferred the framers and ratifiers intended and expected.
Cornell University law professor Michael C. Dorf comments on the US Supreme Court’s ruling in Upper Skagit Indian Tribe v. Lundgren, but more specifically the implications of Chief Justice Roberts’s concurrence in that case. Dorf argues that the Chief Justice’s concurrence, taken to its logical conclusion, broadly undermines the basis for much of the Court’s case law involving the sovereign immunity of US states.
Cornell University law professor Michael C. Dorf discusses a statement by AT&T CEO Randall Stephenson calling his company’s decision to hire Donald Trump’s personal lawyer Michael Cohen “a big mistake.” Dorf describes under what circumstances AT&T’s hiring of Cohen would amount to a crime, and under what circumstances his hiring would not only be legal but a corporate obligation. As Dorf explains, the proper classification of the decision requires more information than the public currently has.
Cornell University law professor Michael C. Dorf comments on a recent Ninth Circuit decision rejecting an effort by PETA to bring a copyright lawsuit on behalf of Naruto, a crested macaque. Dorf points out that while the result in that case is unsurprising, the court’s reasoning raises important questions about the role of lawsuits and law more generally in furthering the interests of nonhuman animals.
Cornell University law professor Michael C. Dorf comments on an exchange during the confirmation hearing of Wendy Vitter, whom President Trump has nominated for a federal district court judgeship, in which Vitter declined to answer whether she thought Brown v. Board of Education was rightly decided. Dorf points out that Vitter’s refusal to answer that question may have been an attempt to avoid further scrutiny about her views about abortion but also served to inadvertently acknowledge what conservatives routinely deny—that a judge’s “personal, religious, and political” views necessarily interact with the legal materials.
Cornell University law professor Michael C. Dorf writes a tribute to renowned Judge Stephen Reinhardt of the US Court of Appeals for the Ninth Circuit, who passed away last week. Dorf, who served as law clerk to Judge Reinhardt, extols the late judge’s principled commitment to serving justice without breaking rules and his unusual ability to bring both empathy and reason to everything he did.
Cornell University law professor Michael C. Dorf considers whether, in protest of the Supreme Court’s recognition of the constitutional right to same-sex marriage, states can “get out of the marriage business” altogether. Dorf explains that abolishing marriage for everyone likely poses no equal protection issues, and points out some interesting and unique characteristics about marriage as a fundamental right.