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.
Justia columnist and Cornell law professor Michael Dorf comments on a recent Israeli Supreme Court decision that held that a law exempting ultra-Orthodox Jews from military service unconstitutionally denies equality of treatment to other Israelis, who either must serve in the military, or—if they are conscientious objectors—must perform alternative service. Dorf notes that the Israeli decision is not only interesting in its own right, but also sheds light on two questions that U.S. courts must frequently face: How should courts evaluate laws that confer special benefits on certain minorities within society? And, when should people and institutions be exempted from legal requirements based on religious objections? In particular, Dorf points out that the Israeli decision has interesting comparative-law implications for American debates about affirmative action, and about the granting of religious exemptions to otherwise-applicable laws.
Justia columnist and Cornell law professor Michael Dorf comments on the Supreme Court’s recent decision to review a case involving race-based affirmative action in higher education. As Dorf explains, the Court has not resolved an affirmative-action case since 2003, and thus this new case will be especially closely watched. Dorf discusses the affirmative action precedents that the Court has already handed down, including the famous Bakke case, and the University of Michigan cases, Gratz and Grutter—the impact of which, Dorf explains, has been modest. The new case that the Court will review, Dorf explains, involves the University of Texas's admissions system—which offers admission to all Texas students who rank in the top ten percent of their high school class, and also adds consideration of race as one of a number of factors in admissions decisions. Dorf describes the issues the Texas case raises, and predicts that the Court's opinions—on both sides—will necessarily lack candor, as both liberals and conservatives pay lip service to an ideal of colorblindness, but do not actually hew to that ideal.
Justia columnist and Cornell law professor Michael Dorf comments on ways in which election funding can still be made more fair and just—even after the Supreme Court’s highly controversial Citizens United decision. (In Citizens United, as readers may recall, the Court invalidated a provision of McCain-Feingold that forbade the use of general corporate-treasury funds or union funds for financing political advertisements during the sixty days prior to a primary or general election.) Dorf covers the impact of Citizens United; the impact of another recent campaign-finance Supreme Court decision that preceded it; the calls that some have made for a constitutional amendment allowing campaign-finance reform; and options that Congress still retains, even after Citizens United, to reform the campaign finance process—such as simply requiring that media companies provide campaigns with copious free advertising space and time.
Justia columnist and Cornell law professor Michael Dorf comments on remarks that Republican presidential hopeful Newt Gingrich made last week, promising that if he were to be elected president, then by the end of his second term, he will have established a colony on the Moon. Could that really happen? And if it did, would it be a good idea? Dorf considers present technological limits, and legal obstacles stemming from U.S. treaty commitments. While highly skeptical of the Gingrich proposal, Dorf does find a kernel of sense in it: Gingrich, Dorf notes, may well be right that the colonization of space could be the key to the long-term survival of human civilization.
Justia columnist and Cornell law professor Michael Dorf comments on the constitutional law regarding recess appointments—that is, appointments made by the president when Congress is not in session. The topic is timely due to the current controversy over President Obama's recent grant of two recess appointments—for the positions of the head of the Consumer Financial Protection Bureau (CFPB), and the head of the National Labor Relations Board (NLRB). The President and Senate Republicans differ sharply as to whether Congress was, in fact, in recess when the appointments were made—and thus, as to whether the two appointments were valid. Dorf contends that each side makes a plausible case for its own position on this issue, and argues, more generally, that recess-appointment controversies cannot truly be understood without attention to the substantive merits of the appointment that is at issue in a given case.
Justia columnist and Cornell law professor Michael C. Dorf takes strong issue with presidential candidate Newt Gingrich’s comments regarding judicial supremacy. In particular, Dorf explains, Gingrich has suggested that federal judges could be summoned—even by force—to explain their decisions before Congress, and that Supreme Court Justices and lower federal court judges with whose opinions Gingrich disagrees ought to be impeached. Dorf explains that, as Gingrich states, there have indeed been times in American history when judicial supremacy—which holds that all other government actors must act as if bound by the rulings of the Supreme Court—has been controversial. However, Dorf contends, Gingrich—in suggesting that we revert to those times—fails to appreciate how and why the courts’ role has evolved over the course of American history up to the present, and, worse, puts forth a dangerous proposition.
Justia columnist and Cornell law professor Michael C. Dorf comments on the Supreme Court’s decision to take up a case involving the controversial Arizona immigration law—another blockbuster in a momentous Term for the Court, which will also resolve cases on the health care legislation and redistricting in Texas. Regarding the Arizona immigration case, Dorf explains the relevance, in the case, of the theory of the “unitary executive,” and notes that there seems to be a common misconception: The question in the Arizona case, he explains, is not whether Congress can preempt state immigration law—it plainly can—but whether Congress did, in fact, preempt Arizona’s immigration law. Dorf also explains the unusual way in which the Justices’ ideological leanings play out in typical federal-preemption cases, and why immigration cases involving federal preemption are atypical in this respect. In addition, he explains why a Court precedent on gun control and federalism may play a large role here.
Justia columnist and Cornell law professor Michael C. Dorf, and Justia guest columnist and Duke law and political science professor Neil S. Siegel comment on an interesting but less often discussed aspect of the controversial 2010 federal health care law. As Dorf and Siegel explain, before the Supreme Court reaches the merits of the case involving the health care law, it must first consider the federal Anti-Injunction Act, which became law in 1867. Dorf and Siegel note that the Anti-Injunction Act requires taxpayers who object to the federal government’s assessment or collection of a tax to first pay up, and only then sue for a refund. With respect to the federal health care law, Dorf and Siegel explain, that would delay even the very beginning of federal litigation until 2015. Yet both the law's fans and its detractors want a decision from the Supreme Court much earlier than that. Some would opt to simply ignore the Anti-Injunction Act, but as Judge Brett Kavanaugh of the U.S. Court of Appeals for the D.C. Circuit commented, “There is no ‘early-bird special’ exception to the Anti-Injunction Act.” Fortunately, Dorf and Siegel offer an ingenious solution to this dilemma that combines a reasonable interpretation of the Anti-Injunction Act with the passage of a new federal stature.
Justia columnist and Cornell law professor Michael Dorf comments on the evolution and role of the “scholar brief.” A scholar brief is an amicus (friend-of-the-court) brief submitted to a court—usually, the U.S. Supreme Court—by a law professor acting in his or her role as scholar, rather than advocate. Dorf notes that a column in The New York Times recently pointed to Harvard Law Professor Richard Fallon’s article draft questioning the value of scholar briefs, by suggesting that they are very often not particularly scholarly. In this column, Dorf considers why scholars’ amicus briefs have proliferated recently, and what light that proliferation sheds on the evolving relationship between the bench and the legal academy. In particular, Dorf connects the proliferation of scholar briefs to the increasing divide between legal scholarship in the academy, and the more practical work of the courts, including the Supreme Court. And yet, he notes that the academy’s work—contrary to the claims of some—actually does continue to have relevance to courts, in part by showing how disciplines such as economics and psychology can better illuminate the workings of the law.
Justia columnist and Cornell law professor Michael Dorf comments on Justice Thomas’s views on the proper approach to cases raising issues regarding the Constitution’s separation of church and state. Dorf contends that Justice Thomas is correct to observe that the Court’s current test for when the government is unconstitutionally endorsing religion, in violation of the Establishment Clause, is so vague that the way that lower courts and even the Supreme Court will rule, when applying the test, is highly unpredictable. Justice Thomas has accurately pointed out, for example, that a crèche displayed on government property violates the Establishment Clause, except when it doesn’t; a menorah displayed on government property violates the Establishment Clause, except when it doesn’t; and a cross displayed on government property violates the Establishment Clause, except when it doesn’t. Nevertheless, Dorf contends that Thomas, while mounting a biting critique of the Court’s current endorsement test, does not offer a superior alternative—and points out that, given the numerous Justices who’ve tried to solve this thorny problem over the years, there may actually be no superior alternative.
Justia columnist and Cornell law professor Michael Dorf comments on the law relating to President Obama’s military strategy, which has emphasized air power and surgical strikes, as opposed to the use of ground troops, in a number of contexts. From the raid that killed bin Laden, to the drone strike that killed Anwar al-Awlaki, to air support for Libyan rebels, Obama’s tactical choices have led Dorf and others to scrutinize what seems to be an “Obama Doctrine” regarding the waging of modern war. Dorf notes that Obama is willing in some cases to use unilateral force, though less willing to do so than the second President Bush (who himself may well have been an outlier among recent presidents in this respect). One example, Dorf notes, is Obama’s use of unmanned drones. Dorf covers both the benefits of the Obama Doctrine, such as decreasing American casualties and diminishing America’s role as occupier, and its costs, such as drones’ causing civilian casualties—an important harm in itself that also leads to hatred of America. Finally, Dorf notes that the Obama Doctrine raises a host of significant legal questions that have yet to be resolved.