Justia columnist and Cornell law professor Michael Dorf proposes a limiting principle to explain the NBA’s treatment of LA Clippers owner Donald Sterling. Dorf argues that if private speech can be the basis for employment decisions generally, then Sterling’s example could be highly problematic. If, however, Sterling is understood as having created a hostile work environment under Title VII of the federal Civil Rights Act, then the potentially broad and troubling employment implications of disciplining private speech are appropriately curtailed.
Justia columnist and Cornell law professor Michael Dorf discusses the U.S. Supreme Court’s decision this week in Schuette v. Coalition to Defend Affirmative Action. He provides a brief history of Supreme Court jurisprudence on race and contrasts that history with yesterday’s fractured opinions, which consist of a plurality opinion, three concurrences, and a dissent (with Justice Kagan recused). Dorf explains that while the decision has relatively low doctrinal stakes, the case exposes three important fault lines running through the Roberts Court.
Justia columnist and Cornell Law professor Michael Dorf critiques the U.S. Supreme Court’s recent decision in McCutcheon v. Federal Election Comm’n striking down aggregate limits on individual contributions to political campaigns. Dorf argues that the Court’s plurality opinion is poorly reasoned and disregards the broader purpose of aggregate limits: to prevent wealthy donors from buying Congress as a whole.
Justia columnist and Cornell Law professor Michael Dorf discusses yesterday’s oral arguments before the U.S. Supreme Court in Sebelius v. Hobby Lobby Stores, Inc. and Conestoga Wood Specialty Stores Corp. v. Sebelius, which presented questions over the degree of religious freedom afforded to for-profit corporations. Dorf describes how these issues have evolved over the past two and a half decades and provides several possible reasons they have become so ideologically charged, as they are today.
Justia columnist and Cornell law professor Michael Dorf contends that recent and ongoing controversies involving First Amendment freedoms pose fundamental questions about the circumstances under which exceptions should be granted to individuals and businesses with objections to complying with general laws. How should these questions be resolved? Dorf posits that the answer may depend upon the particular right in question.
Justia columnist and Cornell law professor Michael Dorf comments on last week's approval by the Arizona legislature of a bill last week that, if signed by the Governor would greatly expand the scope of religious exemptions from nondiscrimination law in that state. Like measures proposed elsewhere, the Arizona bill grows out of a fear by people opposed to same-sex marriage that they will be required to provide services to same-sex couples. Dorf comments on the relevant issues.
Justia columnist and Cornell Law professor Michael Dorf discusses an upcoming U.S. Supreme Court case addressing how to determine whether a criminal defendant is intellectually disabled and thus ineligible for the death penalty. Dorf explains the potentially far-reaching implications of the case, Hall v. Florida, and cautions that a ruling for Florida could undermine the uniformity of federal constitutional law.
Justia columnist and Cornell law professor Michael Dorf argues that what the late Justice Harry Blackmun famously called “the machinery of death” still remains deeply flawed. Dorf illustrates his point through two recent, controversial executions that illustrate how the practice of capital punishment continues to defy attempts to civilize it, and suggests that the responsibility is to be placed at the Court's door.
Cornell law professor and Justia columnist Michael Dorf comments on the Supreme Court’s Obamacare/RFRA cases, which he notes present a number of important legal issues, as well as a fundamental question for any liberal democracy: To what extent should people be exempted from laws that they regard as requiring them to participate in evil?
Justia columnist and Cornell law professor Michael Dorf explains why government officials around the country feel compelled to permit Festivus poles as part of their official holiday celebrations. How did we get to this point? The short answer, Dorf explains, is that Festivus poles in state capitols are an unexpected side effect of the Supreme Court’s Establishment Clause jurisprudence.
Justia columnist and Cornell law professor Michael Dorf explains the politics behind filibuster reform, in the wake of the elimination of the rule requiring a supermajority vote to end debate—and thus to move to a merits vote—on presidential nominations to the lower federal courts and executive offices.
Justia columnist and Cornell law professor Michael Dorf comments on the legal and other aspects of the incidents by which Miami Dolphins offensive lineman Richie Incognito bullied and racially harassed his teammate Jonathan Martin, to the point that Martin left the team. Dorf also notes that, interestingly, several U.S. Supreme Court cases are relevant to the controversy regarding Incognito’s behavior.
How has a minority in the House been able to hold the country and the global economy hostage? Justia columnist and Cornell law professor Michael Dorf’s answer is a matter of ideology, politics, and constitutional structure. As Dorf explains, Congress was not designed to work with political parties and has only been awkwardly retrofitted to do so.
Justia columnist and Cornell law professor Michael Dorf contends that mass shootings will never lead to gun-control laws. While he notes that the gun lobby plainly plays a role in that situation, Dorf also sees the difficulty of getting such laws passed as a failure of democracy: Although more people favor than oppose additional gun-control measures, the gun-control opponents appear to favor gun rights with greater intensity than the intensity with which the majority favors gun control.
Justia columnist and Cornell law professor Michael Dorf comments on President Obama’s options in Syria. Dorf notes that Secretary of State John Kerry’s position is that the President can act without Congress. But Dorf calls that position profoundly misguided, citing international law and the U.N. Charter on the use of force. Dorf also points out that Congressional approval cannot substitute for Security Council authorization. Moreover, he comments on prior presidents who faced situations in which there was a lack of Congressional authorization for the use of force.
Justia columnist and Cornell law professor Michael Dorf comments on the situation in Egypt, arguing that President Obama’s dubious legal position with respect to Egyptian aid fits a recent pattern of American presidents acting as though they are not constrained by law when it comes to American foreign policy. To support his thesis, Dorf cites choices made by Reagan, Clinton, and George W. Bush.
Justia columnist and Cornell law professor Michael Dorf points out that, in allowing Alex Rodriguez to continue to play baseball despite charges that he violated rules forbidding the use of performance-enhancing drugs, Major League Baseball is simply doing what U.S. trial courts typically do: Even after coming to a judgment, they suspend that judgment pending appeal. Moreover, Dorf argues that the case for permitting A-Rod to play pending appeal is actually stronger than the case for suspending other sorts of judgments. Dorf also explains why the decision whether to suspend a judgment pending appeal can be complicated and controversial, illustrating the point by citing the Proposition 8 litigation.
Cornell law professor Michael Dorf comments on a recent ruling by the United States Court of Appeals for the Fourth Circuit which rejected a claim by New York Times Reporter James Risen that he was entitled to shield his confidential source. Dorf contends that, having assured the public that the Justice Department respects the role of the press, the Administration should forcefully back federal legislation to give reporters a qualified shield for their sources, and even absent such legislation, the Justice Department should fast-track the implementation of Executive guidelines limiting the targeting of reporters.
Justia columnist and Cornell law professor Michael Dorf builds on a recent column by fellow Justia columnist and former counsel to the president John Dean, discussing the substantive privacy issues raised by a recent petition to the Supreme Court seeking review of a top-secret order by a federal judge sitting in his capacity as a Foreign Intelligence Surveillance Court, who ordered Verizon to turn over call logs of all calls in which at least one party was in the United States; and forbade Verizon from informing its customers that their phone activity (though not the content of their conversations) would be shared with the government in this way. The order, notably, came to light only because Edward Snowden disclosed it. How will the legal arguments that the controversy has raised strike the Supreme Court's Justices? Dorf emphasizes that before we can know the answer, the Court must, of course, decide to accept the case for review, and as Dorf notes, there are serious procedural obstacles to its doing so.
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.