Michael C. Dorf
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by Michael C. Dorf — Reposted by Eric J. Segall
Following up on yesterday's SCOTUS oral argument, I continue my deep dive into whether Congress is forbidden from exercising its power under the Exceptions Clause in a way that impedes the Supreme Court's essential functions and, if so, what those functions are. Spoiler alert: it's complicated!
What are the "Essential Functions" of the Supreme Court?
Yesterday the Supreme Court heard oral argument in Bowe v. United States . In my Verdict column previewing the case, I highlighted the case...
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The more limited version proposed by Larry Sager fits with other aspects of the constitution, as I explained in the Tex L Rev article I link in the blog post.
Barrett asked if saying SCOTUS must be able to resolve circuit splits would vitiate the Exceptions Clause. Bowe's lawyer said it might. No! The existence of certiorari, rather than mandatory appellate jurisdiction, is a clear exercise of the Exceptions Clause power. More tomorrow on the blog. 🧵 End/
His answer to Roberts was a non-answer. He simply referred to the Federal Courts Scholars' amicus brief and urged avoidance. However, as I argue in my column for @justiaverdict.bsky.social, the amicus brief arguably overstates the authority of Hart's essential functions theory.
Will SCOTUS Decide What Its “Essential Functions” Are?
Cornell Law professor Michael C. Dorf discusses the U.S. Supreme Court case Bowe v. United States, which raises the question of whether limits on successive habeas petitions for state prisoners also a...
verdict.justia.com
Sotomayor wanted to know why his argument wouldn't also apply to habeas cases by state prisoners. His answer: They can file original petitions in SCOTUS but federal prisoners can't. That's a good answer. It jibes with the view that Ex Parte McCardle depended on the availability of other habeas.
🧵Roberts, Sotomayor & Barrett each asked Bowe's lawyer about his argument that the Court should find SCOTUS jurisdiction to avoid the constitutional question whether Congress has prevented the Court from performing an "essential function." He handled Sotomayor well but not Roberts or Barrett.
by Michael C. Dorf — Reposted by Eric J. Segall
Oral argument today in Bowe v US presents one of the most profound constitutional questions: Just how much power does Article III's Exceptions Clause give Congress to strip SCOTUS of appellate jurisdiction? I offer some history and context in my latest column for @justiaverdict.bsky.social 👇
Will SCOTUS Decide What Its “Essential Functions” Are?
Cornell Law professor Michael C. Dorf discusses the U.S. Supreme Court case Bowe v. United States, which raises the question of whether limits on successive habeas petitions for state prisoners also a...
verdict.justia.com
Today is what we here in NYS and Ithaca call Indigenous People's Day and the federal government calls Columbus Day. In recognition thereof, here's a repurposed essay I wrote in February 2023 questioning whether and, if so, how to mark Presidents' Day and other holidays (including today's). 👇
For Indigenous Peoples' Day: A Classic on What and When to Celebrate
Today is what the federal government calls Columbus Day and what some states (like New York in virtue of a 2021 gubernatorial proclamation )...
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On a recent episode of the How to Do Everything episode, the first guest said that one can avoid the AI overview in Google by inserting a swear word into one's question. Sadly, this does not appear to be true. See results below.
On the blog, Prof Neil Buchanan, who has been predicting authoritarianism from Trump for nearly a decade, marvels at how even he was insufficiently pessimistic in imagining the myriad ways in which this administration could be cruel and lawless. 👇
How Could Even the Most Pessimistic Predictions Not Be Pessimistic Enough?
When writing a column like this one, it is no longer possible to provide a manageably short list of the unprecedented things that are happen...
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Amidst all the subsequent outrages perpetrated by the Trump admin, Prof Neil Buchanan lingers over the seemingly deliberately cinematic uses of excessive force by ICE in a Chicago apartment building--which exceed even the movie versions on which they're modeled in their indecency and callousness.👇
The Cosplay Is No Longer Play: Terrorizing Americans in Their Homes
One of the laments that I have seen more and more in the Trump II era is some variation on this rhetorical question: "How is this not the ...
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Sure, but the other problem is that a majority of SCOTUS Justices believes there is sufficient uncertainty about gender-affirming care that they would--indeed already did--uphold a law banning it for minors.
Yesterday's oral argument in Chiles v Salazar indicated that SCOTUS will invalidate Colorado's conversion therapy ban and provided some assurance that SCOTUS would also invalidate a "mirror image" red-state ban on gender-affirming care via talk therapy. Details on the blog.👇
The Chiles v. Salazar Oral Argument in the Mirror
Monday on this blog I previewed the oral argument in Chiles v. Salazar , highlighting my ambivalence about the case: although I am in sympat...
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Should have—of course. But it didn’t. My worry is what this Court will do, not what it should do.
by Michael C. Dorf — Reposted by Eric J. Segall
Besides its merits arguments, Colorado defends its conversion therapy ban before SCOTUS by contesting the plaintiff's standing. On the blog, @espinsegall.bsky.social worries the argument will fall on deaf ears, given this Court's tendency to manipulate jurisdiction in cases involving religion.👇
Law Has Nothing to do With It: Jurisdiction and Religion in the Roberts Court
On Tuesday, the Supreme Court will hear oral argument in Chiles v. Salazar , a difficult case involving “conversion therapy.” Colorado, like...
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by Michael C. Dorf — Reposted by Eric J. Segall
Happy First Monday in October! On the blog, I preview tomorrow's SCOTUS oral argument on whether Colorado's conversion therapy ban infringes free speech. I explain why the ideological stakes are mixed by pointing to implications for hypothetical red-state bans on gender-affirming talk therapy.
Colorado's Conversion Therapy Ban Comes to SCOTUS Tomorrow: Are There Implications for Gender-Affirming Talk Therapy?
The Supreme Court officially begins its new Term today with two relatively small-ball cases. The real action begins tomorrow, when the Court...
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In Part 3 of Prof Neil Buchanan's series on Trump's incredible ability to destroy wealth, he suggests that it's not all unintentional. He likens the moves of Trump and other power-crazed plutocrats to tech firms engaging in enshittification of their products: a symptom of late-stage capitalism.👇
Capitalists Kill Capitalism (Who Knew That Trump's Superpower Would Be Destroying Wealth? Part 3)
Why are Trump and the Republicans doing so many things that harm the US and global economies? More accurately, given that the economy has a...
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BTW, I'm hardly the first person to notice that Chotiner's usual style is to ask challenging questions that trap his interviewees with their own words. danieldrezner.substack.com/p/why-do-peo...
Why Do People Talk to Isaac Chotiner?
Some speculations after the latest intellectual self-immolation.
danieldrezner.substack.com
A fair point, but Chotiner was very uncharacteristically non-confrontational in that interview.
by Michael C. Dorf — Reposted by Eric J. Segall
Cass Sunstein sat for an interview with Isaac Chotiner of the New Yorker. Unsurprisingly, given Chotiner's track record, it did not go well for Sunstein--and not only because the best he could do to defend his friendship with Henry Kissinger was to say Kissinger wasn't as bad as Stalin. Details👇
Why Did Cass Sunstein Think Sitting for an Interview with Isaac Chotiner Was a Good Idea?
The most famous classic blunder is getting involved in a land war in Asia, but there are other classic blunders, including the only slightly...
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by Michael C. Dorf — Reposted by Eric J. Segall
Who could have prevented Trump's political prosecution of Comey? Trump; his advisors; & the grand jury. Who can prevent conviction and imprisonment? Judges & jurors. Who's ultimately responsible? Trump, Congressional Republicans & the 40% of Americans who support the authoritarian regime. Details👇
Wait, Can He Actually Do That? Part 21: The Comey Indictment
It has been over a month since my last entry in this series , but that is hardly because there has been any shortage of legally dubious act...
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On the blog, Prof Neil Buchanan calls out otherwise liberal/progressive pundits and politicians for reflexively accepting what was once just the conservative view that government deficit spending and debt is inherently bad.
Clever, (Economically) Ignorant Liberals
One of my pet peeves is the reflexive self-flagellation that we see so often among US liberals, with all of their "to be fair" overcompensat...
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Lest there be any doubt, I disapprove of the underlying executive orders. My bottom line in the column: "the law firms are not the ones breaking the law, and the law that has been broken is not the Antideficiency Act. The law breaker is the president, and the law he violated is the Constitution."
Democrats wrote law firms providing free legal services to the govt after capitulating to Trump's executive orders that they may be breaking the law. In my column for @justiaverdict.bsky.social, I explain that the Antideficiency Act applies only to "voluntary" services, but the firms were coerced. 👇
Are the Law Firm Settlements with the Trump Administration Illegal?
Cornell Law professor Michael C. Dorf explores whether law firms that settled with the Trump administration by agreeing to provide free services to the government violated the Antideficiency Act, whic...
verdict.justia.com
by Michael C. Dorf — Reposted by Eric J. Segall
Directing his attention at Ezra Klein's analysis and JD Vance's rhetoric, Prof Neil Buchanan observes that while of course "words are better than violence, that does not mean that everyone's words are offered in good faith or even add up to a coherent argument." Details on the blog.👇
Wrong Ways to Disagree Politically
The rhetorical battle over political violence in the United States shows no signs of abating, or even leveling off. The latest high-profile...
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by Michael C. Dorf — Reposted by Eric J. Segall
Prof Jacob Hamburger suggests that state labor law could provide some protection against ICE raids: "As federal immigration enforcement ramps up while federal labor enforcement winds down, states have an opportunity to devise new labor law tools to protect and empower immigrants at work." Details 👇
A Labor-Based Approach to ICE's Worksite Raids
Workplace raids have become an important part of the Trump administration's mass deportations agenda. The recent ICE raid at a Hyundai faci...
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That's pretty much every news story and the topic of the first few paragraphs of my blog post today.
The conclusion is the perhaps most (would-be) hilarious part. Having announced military support for Ukraine's full territorial integrity, Trump signs off the same way he might end a welcome message at a tournament at one of his golf courses, wishing good luck to all the players in the tourney/war.
by Michael C. Dorf — Reposted by Eric J. Segall
There was some easy-to-miss amusing news last week. A federal judge struck what he called Trump's "tedious and burdensome" complaint against the NY Times. As I explain on the blog, the lawyers packed the pleading with hyperbole for no tactical legal purpose but to please the narcissistic client. 👇
Who Was the Audience for Trump's "Tedious and Burdensome" Allegations Stated in "Abundant, Florid, and Enervating Detail?"
Perhaps one of the most disorienting aspects of living through our current times is the mix of menace and buffoonery that emanates from Pres...
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by Michael C. Dorf — Reposted by Eric J. Segall
On the blog, @espinsegall.bsky.social, who is a faculty member of a public university in a blue city in a purple state run by a Republican statewide government, wonders what is and is no longer permissible for him to say. 👇
The Big Chill: What Can a Law Professor Say and not Say These Days?
The air has turned chilly for university academics and administrators. Just a few blocks from my house, an Emory University professor was "t...
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