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.
Cornell University law professor Michael C. Dorf comments on a recent sharply divided decision by the US Supreme Court in Patchak v. Zinke, in which Court considered whether a particular piece of legislation actually constitutes a law. Dorf explains why the issue was so difficult and points out some of the flaws in reasoning by both the plurality and the dissent.
Cornell University law professor Michael C. Dorf describes the underappreciated role of the US Supreme Court in shaping public opinion and discussion of gun regulations. Specifically, Dorf explains that the Court's seminal decisions in District of Columbia v. Heller and McDonald v. City of Chicago have symbolic importance beyond their literal holdings, giving gun rights proponents strong rhetoric, though not strong legal basis, for an absolutist position.
Cornell University Michael C. Dorf explains the symbolism of President Donald Trump's announcement during his State of the Union address that he would be keeping the detention facility at Guantánamo Bay open. Dorf points out that despite the extraordinarily high cost of keeping the facility open, Republicans support its continued operation simply as repudiation of President Obama, who wanted to close it. Dorf points out that Republicans' opposition to closing Gitmo during the Obama presidency also jibed with the not-so-veiled racism of many Republicans who questioned Obama's citizenship and commitment to the US (disregarding the fact that President Bush actually released more Gitmo detainees than President Obama did).
Cornell University law professor Michael C. Dorf argues that regardless of the outcome of President Trump's "Travel Ban 3.0" before the US Supreme Court, the litigation challenging the Travel Ban should be regarded as a victory over Trump's effort to rule by diktat. In support of this argument, Dorf points out that the litigation makes it abundantly clear to the American people that Trump remains every ounce the same vile and petty would-be tyrant that he appeared on the campaign trail.
Cornell University law professor Michael C. Dorf comments on the recent announcement by Attorney General Sessions that the Trump Department of Justice was rescinding an Obama administration policy toward state-legal marijuana. Dorf argues that the policy shift breaks promises by then-candidate Trump and then-Senator Sessions, but that objections to the new policy on federalism grounds are largely misguided.
Cornell University law professor Michael C. Dorf considers whether the new tax law, which disproportionally affects “blue” states as compared to “red” states due to changes to the deductions for state and local taxes (SALT), is unconstitutional. Dorf explains some of the possible arguments against the law but ultimately concludes that due to difficulties of proof, courts probably won’t end up ruling that the SALT deductibility cap violates the First Amendment or a core principle of federalism.
Cornell University law professor Michael C. Dorf explains why the Masterpiece Cakeshop case before the US Supreme Court—in which the Court will decide whether a baker may refuse to serve a gay couple based on his religious beliefs—does not present a difficult choice between liberty and equality. Rather, Dorf points out, the baker’s free speech claim in this case should be relatively easy to reject because a cake without an articulate message on it does not constitute the “speech” of the person who made it.
Cornell University law professor Michael C. Dorf considers the recent spate of sexual misconduct allegations in the political sphere and entertainment industry, and notes how much less inclined to action and condemnation the former is compared to the latter. Dorf illustrates this point by considering the allegations against Donald Trump and Roy Moore, as well as various well-known Hollywood players, then evaluates several factors that may explain the contrast in reactions. Dorf concludes that the polarized, partisan state of our government, coupled with weak political parties, ultimately leaves Washington far more powerless to purge offending individuals than Hollywood.
Cornell University law professor Michael C. Dorf considers how President Trump’s attacks on CNN affect the Justice Department’s efforts to block AT&T’s proposed purchase of Time Warner (by requiring AT&T to sell off Turner Broadcasting, the parent company of CNN, or DirecTV). As Dorf points out, illicit intent can taint policies that without such intent would pass constitutional muster. Dorf explains why AT&T likely can meet the threshold of making a “credible showing of different treatment of similarly situated persons” to advance allegations of selective prosecution based on free speech.
Cornell University law professor Michael C. Dorf describes a principle most famously articulated by Thomas Jefferson, under which there should be a right to avoid providing financial support for causes one strongly opposes. Dorf argues that the Jeffersonian principle has lately run amok. He points out that the government’s argument against allowing a seventeen-year-old undocumented immigrant in federal custody to obtain a privately funded abortion is but one example of the government’s too-broad definition of “facilitation” of acts with which it disagrees. Dorf argues that adoption of such a position would convert every objectionable private exercise of rights into government participation.
Cornell University law professor Michael C. Dorf explains why, if Congress wants to ban or further regulated the sale of “bump stocks,” it should act quickly or risk missing the window in which regulation is possible. Dorf points out that the test the Supreme Court uses for whether weapons count as “arms” protected by the Second Amendment is whether they are in “common use,” not whether they are “dangerous and unusual weapons.” Dorf argues that so long as bump stocks remain legal, people can accumulate them, and if enough people do that before they are banned, there could be so many in circulation as to qualify as in common use, thereby falling within the scope of Second Amendment protection.
Cornell University law professor Michael C. Dorf describes some of the key similarities and differences between the most recent iteration of President Trump’s ban on entry to the US by certain foreign nationals (“Travel Ban 3.0”) and earlier versions, and considers whether these differences will affect the determination of the policy’s legality. Although the Supreme Court might not ultimately be the court that answers the question, Dorf points out that we may have an answer before too long.
Cornell University law professor Michael C. Dorf comments on a recent decision by the Israel Supreme Court holding that the government’s policy of exempting Haredim (ultra-Orthodox Jews) from military service was unconstitutional discrimination. Dorf describes the background of the legal system in Israel and explains how the relationship between the court and the elected officials in that country might inform judicial review in other democracies.
Cornell University law professor Michael C. Dorf comments on a recent decision by the Supreme Court of India in which that court ruled that the Constitution of India protects a right of privacy. Dorf explains the significance of the decision not only for the largest democracy in the world, but also for people in other constitutional democracies, including the United States.
Cornell University law professor Michael C. Dorf uses the refusal of private internet domain registrars to do business with neo-Nazi website The Daily Stormer to illustrate the need for a change in the law. Dorf acknowledges that in the case of The Daily Stormer, no rights were violated, and the companies acted within their terms of service. However, Dorf argues that Congress should impose obligations to respect freedom of speech on companies that provide essential internet services to avoid the future possibility that such private companies stifle speech of worthy organizations and legitimate causes.
Cornell University law professor Michael C. Dorf highlights some potentially dangerous consequences of the Justice Department’s recent indication that it would be investigating and suing colleges and universities that practice affirmative action. Dorf points out that the executive branch holds significant power over both public and private universities and colleges, and that it could exercise that power to induce significant changes in admissions policies.
Cornell University law professor Michael C. Dorf argues that if President Trump were to pardon himself, that action itself would not cause a constitutional crisis, but other actions Trump has already taken have already placed us far along a road to a constitutional crisis. Dorf defines a constitutional crisis in terms of three types first articulated by Sanford Levinson and Jack Balkin in a 2009 law review article, and Dorf proposes a fourth type characterized by defiance of unwritten norms that are not themselves legal obligations but that undergird the constitutional system as a whole.
Cornell University law professor Michael C. Dorf analyzes the arguments made by Donald Trump’s lawyers in defending against Summer Zervos’s defamation suit against him, specifically the argument that Trump’s comments were mere “hyperbole” and “fiery rhetoric,” which, in the context of a presidential campaign, do not amount to defamation under state law. Dorf argues that existing law already offers politicians some protections against frivolous lawsuits, and what Trump’s lawyers are asking for is essentially a license for a candidate to lie about anyone and anything so long as the controversy has some connection to politics.