Justia columnist and Cornell law professor Michael Dorf isolates an interesting, but also troubling, pattern in the Supreme Court’s thinking, which he calls novelty-skepticism. Dorf notes that novelty-skepticism cuts across doctrinal areas, and defines it as a recent tendency of the Justices to presume that novel forms of legislation are unconstitutional merely in light of their novelty. Dorf offers examples of novelty-skepticism from recent decisions, and urges that the Court ought to give up its novelty-skepticism, for sometimes a new kind of law can be entirely constitutional, and in general, there is no good reason that a new law should have to jump constitutional hurdles that are higher than those that more familiar laws have had to scale.
Justia columnist and Cornell law professor Michael Dorf comments on Monday’s Supreme Court ruling, Arizona v. Inter Tribal Council of Arizona. There, as Dorf explains, a mostly united Supreme Court rejected Arizona’s efforts to require voters to provide documentary evidence of their U.S. citizenship in order to register to vote in federal elections. Dorf highlights three key features of the case: (1) the Court did not divide ideologically; (2) the majority opinion affirms a principle of broad federal preemption with respect to federal regulation of voting; and (3) the Court left open the possibility that states—including Arizona—could circumvent the Court's ruling.
Justia columnist and Cornell law professor Michael Dorf explains the complex situation regarding the New Jersey Senate seat that was held by Frank Lautenberg, who just recently passed away. Lautenberg was a devoted Democrat, but now a Republican will name his immediate successor, who will then have the advantage of incumbency in the next election. Dorf explains how and why this somewhat odd-seeming sequence of events occurred, and explains the role that the U.S. Constitution’s Seventeenth Amendment, in conjunction with New Jersey law, played here. Dorf also contends that there are far better ways than this to fill Senate vacancies, and describes one such system.
Justia columnist and Cornell law professor Michael Dorf comments on Monday’s unanimous Supreme Court ruling in Metrish v. Lancaster, as well as on the more general significance of unanimous rulings. Lancaster, as Dorf explains, involved the writ of habeas corpus, which the Justices declined to invoke, despite evidence indicating that the convict at issue did not receive due process at the state court level. Dorf also notes that this is only one instance in a larger pattern of the weakening and narrowing of habeas corpus at the High Court.
Justia columnist and Cornell law professor Michael Dorf comments on the law applicable to the forced feeding, via tubes, of those Guantanamo detainees who refuse to eat, as they are on a hunger strike, and are becoming dangerously weak. Human rights groups condemn the forced feeding as cruel, but the government says that it is better than the detainee’s dying. With U.S. law unclear on the force-feeding issue as it related to detainees, Dorf analyzes the situation, citing two relevant Supreme Court precedents and other legal sources that might shed light on the issue. He also suggests that the detainees’ best hope, in this situation, might be to invoke international law, though their chances of prevailing will still be slim.
Justia columnist and Cornell law professor Michael Dorf comments on the Supreme Court’s recent ruling on the Alien Tort Statue (ATS), which had been interpreted by many human rights attorneys as opening the way for serious foreign wrongs to be litigated in U.S. courts, including the Supreme Court. The conservative Justices rejected that interpretation, however, and their votes won the day, angering and disappointing human rights lawyers. Still, Dorf finds a few positives for the human rights law community in the Court's decision, as well, citing a handful of ATS approaches that may remain to be used.
Justia columnist and Cornell law professor Michael Dorf comments on two recent Supreme Court cases that raise complicated and interesting issues regarding class action certification. Dorf explains the holding in each case, and addresses the interesting way in which the substantive merits of the cases and their procedural posture as class actions intertwine.
Justia columnist and Cornell law professor Michael Dorf comments on a set of key affirmative action issues that the Supreme Court may address this term and/or the next. The programs at issue include affirmative action in state public higher education, employment, and contracting. As Dorf notes, the Michigan affirmative action case that the Court will address is more complicated than it may at first seem, in part because Court precedents establish limits on how a state or local government may go about eliminating or preventing laws that benefit racial minorities. Dorf also notes that an issue that is important here also crops up in the Prop 8 case currently before the Court: the issue of the import of giving and then taking away rights.
Justia columnist and Cornell law professor Michael Dorf comments on Justice Scalia’s arguments regarding what Scalia calls “racial entitlements,” and the Voting Rights Act. As Dorf notes, these issues came up during the oral argument in the case of Shelby County v. Holder. Moreover, Dorf notes, Scalia had earlier raised these arguments both when he was a law professor, and repeatedly in his opinions on the Court. But, Dorf points out, Scalia’s references in the past appeared in affirmative action cases, whereas this reference appeared in his discussion of Section 5 of the Voting Rights Act, which is not an affirmative action provision; rather it deals with election rules in jurisdiction with a history of discriminatory voting rules. Dorf questions whether Scalia’s extension of his own “racial entitlements” logic is valid in this context.
Justia columnist and Cornell law professor Michael Dorf contrasts Obama’s policy of targeted killings of persons believed to be leaders of al Q’aeda, with George W. Bush’s prior policy of authorization of the use of torture. The issue is timely in the wake of the release of an Obama Administration white paper on the targeted-killing issue. Dorf notes that the Administration is drawing criticism from both the right and the left on that issue. Dorf argues that the Administration is right to seek to craft a policy that complies with both the U.S. Constitution and the international law of war. He also examines the views of controversial conservative law professor John Yoo on which is worse: the Obama Administration’s targeted killing policy, or the Bush Administration’s torture policy. Dorf also looks at such questions from the point of view of not just law, but also morality.
Justia columnist and Cornell law professor Michael Dorf takes strong issue with the three arguments that Congressional Republicans have put forward in support of Section 3 of the Defense of Marriage Act (DOMA), which defines marriage as opposite-sex marriage alone for purposes of federal law. Next month, the Supreme Court will hear oral argument in the case. Dorf characterizes the three arguments put forward in favor of Section 3 by Congressional Republicans as very weak, and indeed, shockingly unpersuasive, analyzing each in turn.
Justia columnist and Cornell law professor Michael Dorf continues his two-part series of columns on Roe v. Wade on its 40th anniversary. Here, in Part Two of Dorf’s two-part series, he addresses a common criticism that has been voiced by Justice Ruth Bader Ginsburg, prior to her joining the Court, and by others as well: the criticism that Roe went too far, too fast and that having more of a dialogue beforehand might have led to less controversy surrounding the decision. Dorf disagrees with this criticism of Roe and its timing, contending (1) that the criticism may well have been mistaken from the very beginning, and (2) that the passage of forty years since Roe was handed down has surely and clearly refuted the too far, too fast critique of Roe. (Part One of Dorf's series on Roe appeared on January 17 here on Justia’s Verdict.)
In the first in a two-part series on Roe v. Wade on its 40th anniversary, Justia columnist and Cornell law professor Michael Dorf explains where three common criticisms of the controversial Supreme Court precedent each go wrong. The criticisms run as follows: (1) that the constitutional text nowhere mentions abortion; (2) that the original meaning of the Fourteenth Amendment did not encompass a right to abortion; and (3) that the courts ought to stay out of socially divisive issues. If these objections are carefully considered, Dorf concludes, none of them holds water. Still, Dorf notes, Roe was nonetheless a hard case. (Dorf will continue his commentary on Roe’s 40th in his Wednesday, January 23 column.)
Justia columnist and Cornell law professor Michael Dorf and Justia columnist, George Washington law professor, and economist Neil Buchanan argue that, faced with a trilemma of unconstitutional choices, President Obama effectively has no choice but to exceed the debt ceiling, and they explain exactly why that is. Buchanan and Dorf describe why, to honor the Constitution, a President must choose to issue debt in excess of the statutory limit, if the budget otherwise requires him to do so. They also argue that even Republicans in Congress should want the President to issue more debt, if Congress itself is unable to find a way to do its duty and increase the debt ceiling as needed. In their analysis, Buchanan and Dorf also invoke the idea that some choices are more unconstitutional than others; constitutionality, in other words, isn’t just either/or.
In the second in this two-part series of columns on constitutional gun regulation, Cornell law professor Michael Dorf comments on the ways in which the Supreme Court may interpret the Second Amendment, after the Newtown, Connecticut massacre. In particular, Dorf notes subtleties of interpretation that may matter greatly in this area of constitutional law. In particular, Dorf comments on the difference between living constitutionalism and originalism, and the difference between old originalism and new originalism. Dorf also takes Justice Scalia to task for not fully practicing what he preaches, harkening back to Scalia’s recent comment that the Constitution is “dead, dead, dead.”
In Part One of a two-part series of columns on the Second Amendment and gun regulation, Justia columnist and Cornell law professor Michael Dorf considers the question of which firearm regulations the Supreme Court will allow, and which the Court will consider to be Second Amendment violations—a timely question in light of the Newtown Massacre and the many gun-control ideas and suggestions to which that tragedy has led. While some of these suggestions are clearly constitutional, as Dorf explains, others may or may not be. Dorf focuses especially on the possibility of a ban on possession of firearms in public places, and its possible constitutionality or lack thereof, noting that two prior Second Amendment cases that the Court handed down, in 2008 and 2010, do not resolve that issue.
Justia columnist and Cornell law professor Michael Dorf comments on two questions involving same-sex marriage that the Supreme Court may or may not duck: First, there is the question whether Section 3 of the Defense of Marriage Act (DOMA)—which defines marriage under federal law as opposite-sex marriage, even when state law recognizes same-sex marriage—is constitutionally valid. And, second, there is the question whether California violated the Constitution when it enacted Proposition 8, which prospectively eliminated the possibility of same-sex marriage, and thereby nullified an earlier California Supreme Court ruling that had found a state-constitutional right to same-sex marriage. Dorf considers why the Justices might—or might not—see the cases that raise these questions to be appropriate vehicles for Supreme Court review, and notes what might happen next if the Court does not take up a DOMA case.
Justia columnist and Cornell law professor Michael Dorf comments on the interesting question of what President Obama’s agenda should be, now that he has been re-elected. Past presidents have often faced scandals in their second terms, Dorf notes, but assuming that Obama avoids that fate, what should his top priority be? Dorf argues that it should not be a grand bargain addressing the federal deficit by lowering spending and increasing taxes, as the options currently on offer in that vein could actually be harmful in the short run, and inadequate in the long run. Instead, Dorf says, Obama’s key agenda item should be cost internalization when it comes to health care. That would mean that we would move toward a health-care system in which the people who profit from health-care measures (doctors and patients) also bear the cost of those measures. Although we may already be headed in this direction, Dorf notes, there is much more to be done along these lines.
Justia columnist and Cornell law professor Michael Dorf comments on the fiscal cliff—the combination of higher taxes and across-the-board spending cuts that America faces if Congress and President Obama fail to reach agreement in the next few months. Dorf explains exactly what the cliff is, how we came to its edge, and why there is no guarantee that our elected leaders will avoid taking us over the cliff. In so doing, Dorf addresses both aspects of the cliff—higher taxes and spending cuts—and the deadlines that pertain to each. Dorf also addresses the question whether compromise is possible on these issues, and explains why the outcome, if there is no compromise, may have stark consequences, as everyone involved knows—and yet still might occur.
Justia columnist and Cornell law professor Michael Dorf comments on a recent decision by a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit, throwing out the conviction of Salim Ahmed Hamdan, a Yemeni who was captured in Afghanistan in 2001. Dorf chronicles Hamdan’s long legal journey, and the repercussions that it has had for U.S. law. Dorf also explains that while the most recent decision regarding Hamdan is narrow, it nevertheless carries symbolic significance, casting doubt on the Bush Administration’s and the Obama Administration’s respective, and similar, detainee policies.