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.
Justia columnist and Cornell law professor Michael Dorf explains the origin and meaning of the concept of having a “critical mass” of minority students in the affirmative action context, and the role that this concept played in a recent Supreme Court oral argument relating to affirmative action at the University of Texas. Without a critical mass of minority students, it has been argued, such students will feel isolated in class and on campus, and there may be little diversity within the group of minority students itself. For these reasons, the University of Texas gives such students a special “plus factor” in admissions. Dorf explains how both conservatives and liberals on the Court have come to place what he argues is excessive weight on the “critical mass” concept, when it comes to affirmative action in education. He also summarizes the conservative Justices’ critique of the concept, but contends that that critique is itself flawed.
Justia columnist and Cornell law professor Michael Dorf comments on an admiralty case in which the Supreme Court will hear oral argument next week, on the first day of its new Term. As Dorf explains, the case raises a narrow question at first glance: whether a houseboat counts as a “vessel” under federal maritime law. But Dorf also notes that, upon closer inspection, the case has a much wider meaning, illuminating the relevance of longstanding jurisprudential debates to real-world litigation. In particular, Dorf relates the case to a famous debate between two major thinkers on jurisprudence, H.L.A. Hart and Lon Fuller. Hart was a positivist; Fuller hewed to a “natural law” view; and Dorf explains how each of these stances relates to the case before the Court. Dorf also parallels the Hart/Fuller disagreement with one between Justice Scalia and Richard Posner.
Justia columnist and Cornell law professor Michael Dorf comments on a very interesting court case regarding intellectual property rights. As Dorf explains, the case concerned Christian Louboutin’s famous red-soled high-heeled shoes, and pitted Louboutin against Yves Saint Laurent. Dorf discusses the reasons a New York-based federal district court ruled against Louboutin, and the reasons a panel of the U.S. Court of Appeals for the Second Circuit reversed and remanded the case. Dorf questions the Second Circuit decision; questions more generally whether the law overprotects intellectual property; and urges that our legal regime must keep in mind the very real risk that the law in this area, rather than protecting creativity, will become a barrier to it. Dorf also briefly discusses the somewhat similar Apple/Samsung dispute.
Congressman and Senate candidate Todd Akin’s comments about “legitimate rape,” in which he claimed that a woman who is raped is especially unlikely to get pregnant, are now notorious for being both offensive and factually wrong. In this column, Justia columnist and Cornell law professor Michael Dorf contends that—in addition to being highly inaccurate and offending many—Akin’s comments have also harmed the pro-life movement’s ability to present itself as pro-woman. Dorf notes that Akin’s “legitimate rape” phrase harkens back to old stereotypes claiming that women often made false rape claims, when we now know that is untrue. Ultimately, Dorf suggests, Akin’s comments may well have the greatest significance for the abortion debate, and Dorf explains why—examining the pro-life claim that women experience “abortion regret syndrome,” and considering whether the pro-life movement can, or should, be deemed pro-women, given certain facts about the movement.
Justia columnist and Cornell law professor Michael Dorf comments on a recent decision from the U.S. Court of Appeals for the Eighth Circuit. As Dorf explains, the decision upheld a provision of a South Dakota law mandating that women seeking an abortion be informed that, with the abortion procedure, comes “an increased risk of suicidal ideation and suicide.” Although the medical literature shows only a correlation, and not a causal relationship, between abortion and suicide, and although that correlation likely stems entirely from some of the underlying factors that lead women to seek abortions in the first place, the Eighth Circuit still upheld the law at issue. Although the Eighth Circuit’s decision was quite plainly the wrong one, Dorf notes, he also predicts that it’s very unlikely that the U.S. Supreme Court will take the case. He then explains why the Court is likely to decline review and why, if it does grant review, it might uphold the law, even though it ought to be struck down.
Justia columnist and Cornell law professor Michael Dorf confronts an interesting question arising from a controversy relating to the Chick-fil-A restaurant chain. The chain’s president has made anti-same-sex-marriage statements. Under the First Amendment, Dorf notes, no government—federal, state, or local—can punish him for those statements alone. But Dorf also notes that the speech of businesses and their representatives can sometimes be a legitimate concern of government. And he cites two central reasons: First, speech manifesting bias may hint at illegal conduct manifesting the same bias, thus arguably justifying special scrutiny for the speaker. And second, in many circumstances, private speech may also implicate the government itself—for instance, when there is a restaurant on a military base. Citing a mix of hypotheticals and real-life examples, Dorf illustrates the difficult constitutional issues that are at play here.
Justia columnist and Cornell law professor Michael Dorf comments on an interesting end-of-Term Supreme Court ruling, Knox v. Service Employees International Union, Local 1000. Although the Knox opinion was, like all the other end-of-Term opinions, overshadowed by the blockbuster Obamacare opinion that the Court handed down, Dorf points out that the Knox opinion—which was issued before the Obamacare opinion—if carefully read, had actually foreshadowed the result in the Obamacare opinion. In addition to further exploring the relationship between the Knox and Obamacare opinions, Dorf also reads the Knox opinion to potentially spell bad news for labor unions, in the future. Yet the nature of that bad news may be ironic, for Dorf notes that if the conservative Justices do strike a blow to labor unions, they will need to betray their own conservative principles in order to do so.
Justia columnist and Cornell law professor Michael Dorf comments on what emerging democracies, and even America’s own long-established democracy, can learn from two recent rulings from the Supreme Constitutional Court of Egypt. As Dorf explains, the rulings, and the political context in which they arose, can teach us much about courts’ role in promoting democracy. He notes that the world has decisively opted for constitutional review, and the protection of individual rights, which are now a standard feature of established democracies around the globe. Dorf notes, however, that constitutional courts in emerging democracies not only must worry about the tyranny of the majority and the protection of individual rights, but must also be concerned that the government will fall prey to a military coup. In addition to commenting on Egypt’s situation, Dorf also cites Pakistan as another instructive example of the role of courts.
Justia columnist and Cornell law professor Michael Dorf discusses the Supreme Court’s decision in Elgin v. Dep’t of Commerce, which was just recently handed down. Dorf argues that the opinion, though not one of Term’s blockbusters, is still quite significant. That is, in part, because the decision may have implications for the U.S.’s controversial practice of using drone strikes to kill persons deemed to be U.S. enemies—including even U.S. citizens who are abroad. Moreover, Dorf notes that Elgin may have implications for the question whether the Obama Administration has been on firm legal ground when it has declined to enforce the Defense of Marriage Act (DOMA). In addition to these more practical implications of Elgin, Dorf contends that the decision may also be significant as a matter of constitutional theory regarding the respective roles of each of the branches of government.
With the huge JPMorgan Chase trading loss receiving much coverage in the news lately, Justia columnist and Cornell law professor Michael Dorf argues that the loss is evidence that conservatives’ laissez-faire approach to the market is untenable. Dorf begins by explaining how the JPMorgan Chase loss occurred and why some think a regulation called the Volcker Rule would have preempted the loss, had it been in effect, while others disagree. (That rule, Dorf notes, forbids banks from using depositor funds for speculative priority trading—in other words, for making their own bets—but also has an important exception.) Dorf also opines that the result of this year’s presidential election may well affect the Volcker Rule, with a possible future President Obama welcoming the Rule, and a possible future President Romney junking it, as he has suggested he will do. Dorf also expresses concern about the possible results if Romney is elected and the Rule and related regulations do not go into effect.
Justia columnist and Cornell law professor Michael Dorf comments on the controversy that is brewing regarding Elizabeth Warren, the likely nominee for the Massachusetts Senate seat most recently held by Ted Kennedy. The controversy stems from Warren’s mentions of her Native American roots, and it turns out that Warren is, in fact, 1/32d Native American (specifically, Cherokee), so that her claim of having Native American roots is technically true, even if those roots are minimal. So why is the controversy continuing? Dorf suggests that it is because Republicans are trying to somehow connect Warren’s roots to affirmative action issues, even though there seems to be no evidence that Warren was ever herself a beneficiary of affirmative action. The Republicans’ goal, Dorf suggests, is to use affirmative action as a wedge between minority voters and working-class white voters.
Justia columnist and Cornell law professor Michael Dorf comments on two recent Supreme Court decisions that, he argues, may together show that almost the entire Supreme Court is hostile to civil rights claims. The first decision, handed down last week, is Filarsky v. Delia. There, the Court unanimously held that a part-time government employee who is alleged to have committed a federal civil rights violation enjoys qualified immunity. In the second decision, Minneci v. Pollard, which drew only one dissent and was handed down earlier this year, the Court also ruled in favor of a civil rights defendant. Focusing on the juxtaposition of the two rulings, Dorf argues, reveals a Court that selectively invokes principles of judicial restraint in a way that disserves civil rights.
Justia columnist and Cornell law professor Michael Dorf comments on a less often discussed but highly significant issue regarding the Supreme Court’s upcoming decision on Obamacare: If a majority of the Court finds that the minimum coverage provision is unconstitutional, how much of the rest of the law should—and will—also be invalidated by the Court? As Dorf notes, the Court heard from three attorneys who addressed this question, on the third day of oral argument in the case. The plaintiffs in the case contended that none of Obamacare should survive, but Dorf contends to the contrary that, if the minimum coverage provision is struck down, most of Obamacare should still be left standing. Dorf explains the root of the presumption that various parts of a law are severable from each other, and critiques the plaintiffs’ argument that Obamacare should be struck down in its entirety—setting forth three important respects in which he argues that that argument was wrong. One key point Dorf makes is that the statute as issue would work better if the minimum coverage provision were to be left standing, but it would still work if that provision were to be struck down.
Justia columnist and Cornell law professor Michael Dorf comments on three important exchanges among the Supreme Court’s Justices that occurred during the Obamacare oral argument. As Dorf explains, the first exchange tested whether the government could constitutionally require Americans to buy things other than healthcare, such as burial insurance, mobile phones, or American cars. The second exchange involved a hypothetical regarding the government’s power to institute mandatory inoculation. And finally, the third exchange involved the Constitution's limits on “direct taxes.” Having discussed these important exchanges among the Justices, Dorf also describes what he believes to be the basis for the government’s best hope of winning the case.