Dorf on Law

Polling over the last several months revealed some number of voters who said they would likely vote for Donald Trump for President in November but that a criminal conviction could change their minds. People who said such things were, by definition, swing voters. No one who was planning not to vote for Trump would change their mind and support him because he was convicted of 34 counts of felony falsification of documents. Well, perhaps not no one. I've never understood Trump's appeal to anyone. I suppose that voting for Trump because he's a felon is not that much crazier than voting for him because he physically hugs flags . How many of those people who said they would change their mind and not cast ballots for Trump based on a conviction were both sincere and accurately projecting their conduct? Not all, surely. Perhaps not even most. But in a close election, even a small shift could be the difference. There is reason to believe that James Comey's announcement on the ev

Here is part of a recent statement issued by Donald Trump's campaign spokesman: Joe Biden is responsible for all this antisemitic hate on campuses across the country. Whereas there has been no bigger friend to Israel and the Jewish people than President Trump, and his strong record reflects that. And here is a key sentence from a letter sent by Samuel Alito to two United States senators: I am confident that a reasonable person who is not motivated by political or ideological considerations or a desire to affect the outcome of Supreme Court cases would conclude that the events recounted above do not meet the applicable standard for recusal. The stylistic and substantive similarities of the two statements -- the insulting self-righteousness and the assertion that up is down and day is night -- are jarring, to say the least.  In the first quotation, the smear of President Biden is blunt, so I suppose it now counts as "good judicial temperament" that Alito's respons

Justice Clarence Thomas has been ranting and raving about our "color-blind" Constitution since he became a federal judge. Whether the case involved governmental racial classifications in employment or education, Thomas has consistently maintained that the most aggressive level of judicial review, strict scrutiny, applies to all intentional uses of race by the government, and he has never voted to uphold an affirmative action plan. Thomas has explained and justified this approach many times. Here is one example  (citations omitted): The Fourteenth Amendment provides that no State shall “deny to any person . . . the equal protection of the laws.” The Equal Protection Clause guarantees every person the right to be treated equally by the State, without regard to race. At the heart of this [guarantee] lies the principle that the government must treat citizens as individuals, and not as members of racial, ethnic, or religious groups. It is for this reason that we must subject all r

Readers could be forgiven for thinking that the title of today's essay is chiefly meant to invoke the two pro-insurrection flags flown by Justice and Mrs. Alito at their homes in Virginia and New Jersey. Those displays were, of course, infuriating, but the two-step I have in mind appears in two of Justice Alito's majority opinions: Dobbs v. Jackson Women's Health Org .  (2022) (overruling the constitutional right to abortion); and last week's ruling in Alexander v. South Carolina State Conf. of the NAACP  (reversing a lower court judgment that had invalidated South Carolina's electoral map on the ground that it was racially gerrymandered to undercut Black voting strength). Each opinion contains numerous outrageous statements, but here I want to focus on one key analytical move: reliance on another highly dubious precedent as beyond challenge in order to buttress the highly dubious conclusion in the case under consideration. In Dobbs , the Alito majority summarily re

Happy Memorial Day. Meanwhile, closing arguments in the hush-money coverup prosecution of Donald Trump are scheduled for tomorrow, with the jury likely to get the case soon thereafter. What happens if he's convicted? Question 2 of the Federal Courts exam to which I subjected my students explores one set of possibilities. There's also other stuff here to make your head hurt. In the age of AI, I no longer give take-home exams. This one was open-book, open-notes, closed network. The students had four hours and a limit of 2,500 words in total. Take as long as you want and write as much as you like. If you submit answers, don't expect me to grade or comment on them. Enjoy! ---------- Question 1 (30 percent) In November 2024, President Biden is re-elected, Democrats re-take the House, and they gain two seats in the Senate, whereupon they abolish the filibuster, requiring only a simple majority to enact legislation. Congress then passes and the President signs the Immigrant Bill o

[Editor's Note: The following essay is by Professor W. Bradley Wendel .] A new Supreme Court judicial ethics controversy involves . . . another flag. Only a few days ago, the news and online debate were dominated by reports of an upside-down American flag flying outside the house shared by Justice Alito and his wife. An American flag flown upside down is sometimes used as a maritime distress signal. On dry land in 2020, however, it was much more likely to be understood to signify support of the “Stop the Steal” movement. Justice Alito or his wife reportedly displayed the flag as part of a beef with neighbors who had displayed a “F*** Trump” sign in their front yard. Their neighbors, not being Justices on the Supreme Court, have a First Amendment right to put out the sign. Justice Alito’s wife has a First Amendment right to fly the flag, too, but the report kicked off a round of controversy over whether Justice Alito was in violation of any provision of the Supreme Court Code of Con

Maybe Donald Trump's promise to use criminal prosecutions to punish those who displease him is not enough to scare you to death.  After all, even if Trump carries through on his threats, that reign of terror might not directly affect you.  Why not?  As one possibility, you might be a person who thinks of yourself as simply an average American -- OK, not truly average so much as the 1950's version of "normal" that thrills the Republican Party, making you a white non-LGBTQ+ Christian dude with higher than average income and wealth. If so, you will not only feel unthreatened by the culture warriors who would accompany Donald Trump back to Washington, but if you have never done anything that puts you in the category of "enemies of the state," you would never be rounded up with MSNBC's Chris Hayes or late-night comedians like Jimmy Kimmel and Seth Meyers when the time comes.  Nothing for you to worry about when the rule of law is tossed aside for political re

Justice Samuel Alito's constitutional law jurisprudence is centered around old-fashioned and often pernicious views concerning women, family, LGBTQ issues, unenumerated rights, and partisan politics. But this blog post is not about Alito's judicial philosophy. This is a blog post about the man. Buckle up. Here are ten representative examples of Alito's awful behavior. 1) In 1985, Alito applied for a job in the Ronald Reagan Justice Department. He listed on his resume membership in an alumni group with the name " Concerned Alumni of Princeton ." Was this group "concerned" with world peace, famine around the world, climate change, or just getting better meals at Princeton? Nope. The group was "concerned" that too many women were being admitted at the expense of the children of alumni (who of course were mostly white). The New York Times reported the following in the article linked above: The group had been founded in 1972, the year that Judge Al