Amherst professor Austin Sarat argues that the U.S. Supreme Court’s decision in Students for Fair Admissions v. Harvard, which ended affirmative action in higher education, is the worst legal decision of 2023, setting back efforts to dismantle white privilege in the U.S. and resisting the construction of a more inclusive society. Professor Sarat explains why the decision is undemocratic, exacerbating racial inequities and closing pathways to power and prosperity for students of color, contrary to the aspirations of a genuinely inclusive and egalitarian democracy.
Kathryn Robb, executive director of Child USAdvocacy, argues that the attendance of Louisiana Supreme Court Justices at the Red Mass, a religious event seeking divine guidance in decision-making, presents a conflict of interest and blurs the lines between church and state, especially in light of pending cases involving the Church. Ms. Robb highlights the historical and symbolic significance of the color red, used in the Red Mass, as a universal signal for danger and warning, suggesting that this tradition, though time-worn, compromises the integrity of the judiciary and the separation of powers in government.
University of Pennsylvania professor Marci A. Hamilton argues that the United States faces two significant threats: Donald Trump, whom she describes as a fascist with dictatorial aspirations, and a right-wing evangelical-fundamentalist Catholic axis intent on a theocratic takeover, both of which undermine democracy and civil rights. Professor Hamilton emphasizes that these threats are bolstered by historical distortions and a disregard for the Constitution, yet she expresses hope in the public’s rejection of this authoritarianism, as evidenced by reactions to the Dobbs v. Jackson Women’s Health Organization decision and the preservation of abortion rights in conservative states.
Cornell professor Joseph Margulies advocates for the application of restorative justice models at Cornell University in response to recent incidents of harassment and threats affecting Jewish, Muslim, Arab, and Asian students. Professor Margulies argues that understanding and repairing the harm caused by both protected speech and unprotected conduct is crucial, and he stresses the importance of unity and mutual respect in overcoming divisions and hatred on campus.
Amherst professor Austin Sarat argues that former President Donald Trump’s approach in his legal battles mirrors the tactics used by the defendants in the Chicago Seven trial, aiming to turn his trials into political theater and mock the legal process. Professor Sarat argues that Trump’s behavior, including his motion to televise proceedings and accusations against the legal system, are his attempt to subvert judicial proceedings and portray himself as a victim of political persecution, similar to the disruptive and publicity-focused strategies of the Chicago Seven.
Cornell Law professor Michael C. Dorf argues that the Supreme Court’s new Code of Conduct, despite being a step towards addressing ethical concerns, is insufficient due to its lack of enforcement mechanisms and the Court’s history of questionable conduct. Professor Dorf suggests that, despite Justice Alito’s assertion to the contrary, Congress has the authority to impose stricter ethical rules on the Supreme Court and could even explore innovative solutions like a “pinch-hitter” system using retired Justices or federal appeals court judges to address recusal challenges.
Amherst professor Austin Sarat comments on a decision by a federal district court in Louisiana denying a preliminary injunction in a case involving death row inmates seeking clemency. Professor Sarat criticizes the court’s narrow interpretation of the governor’s directive regarding clemency hearings, arguing that it exemplifies a legalistic approach that disregards the broader context and intention of the governor’s actions.
Former federal prosecutor Dennis Aftergut argues that mainstream media’s failure to cover certain substantive news stories, such as local election results and their implications, can lead to a lack of awareness about issues that significantly affect the future of democracy. Mr. Aftergut encourages citizens to influence media coverage by voicing their desire for real news through letters to editors and social media, thereby contributing to a more informed public discourse.
Carlos Bolonha, professor of law at Federal University of Rio de Janeiro; Igor De Lazari, a PhD student at Federal University of Rio de Janeiro and state judge; and Antonio Sepulveda, professor of law at Getulio Vargas Foundation (FGV) and at the Fluminense Federal University; highlight the Brazilian Constitution’s adaptability and resilience over 35 years, having undergone 131 amendments to address contemporary democratic challenges and maintain stability despite political and economic turmoil. Despite these successes, there remains a significant gap between the constitutional promises and their actual fulfillment among Brazilians, with issues like widespread disinformation, inconsistent legal applications, and a lack of popular constitutional engagement still prevalent.
Former federal prosecutor Dennis Aftergut argues that former President Trump’s courtroom behavior in the civil fraud case in New York, marked by attacks on judicial figures and the legal process, indicates his anticipation of a lost case and a strategy focused on delay through appeals and political posturing to his base. Furthermore, Mr. Aftergut suggests that Trump’s tactics on the stand, which include deflecting blame and refusing to answer questions directly, aim to serve his political narrative rather than address the substantive legal claims against him.
Cornell Law professor Michael C. Dorf comments on last week’s conviction of Sam Bankman-Fried on fraud charges related to the operations of his cryptocurrency platform, FTX. Professor Dorf notes that while some view him as a contemporary Robin Hood, given his donations to effective altruistic causes, his actions raise questions about the line between altruism and criminality.
Amherst professor Austin Sarat comments on recent polls suggesting a competitive potential election between former President Trump and current President Biden, with Trump leading in several key battleground states. Professor Sarat warns of the risk to American democracy, suggesting that President Biden needs to effectively counteract former President Trump’s narrative to emerge as the genuine defender of democratic values.
Law professor and economist Neil H. Buchanan argues that Democratic primary voters were not adamantly opposed to Joe Biden but preferred other candidates, and while his presidential nomination was initially disappointing for some, his decency and surprising policy actions have been a positive aspect of his presidency. Professor Buchanan draws an analogy between Biden’s empathetic support of his son’s struggles and his approach to foreign policy, especially in relation to Israel, suggesting that Biden’s personal experiences with empathy and loss have informed his measured, empathetic foreign policy stance, despite some critics wishing for a firmer response to Israeli actions.
Amherst professor Austin Sarat comments on Massachusetts Governor Maura Healey’s introduction of new guidelines aimed at reshaping the clemency process in the state, emphasizing mercy and addressing structural inequities in the criminal justice system. Professor Sarat praises Governor Healey’s approach as aligning with historical views on clemency and seeking to correct systemic wrongs, promote equity, and recognize individual growth and rehabilitation, despite the prevailing reluctance of many governors to grant clemency for fear of appearing lenient on crime.
Former federal prosecutor Dennis Aftergut criticizes the law firm Boies Schiller Flexner for hiring Mark Brnovich, the former Attorney General of Arizona, as a lateral partner, citing Brnovich’s prominent role in misleading the public about election fraud. The author argues that such a hiring decision tarnishes the law firm's reputation and undermines the legal profession's responsibility to uphold truth and democratic values.
Illinois Law professor Lesley M. Wexler explores the complexities of the concept of “proportionality” in the Israel-Gaza conflict, examining it both from the lens of international law and public opinion. Professor Wexler delineates two aspects of international law that govern proportionality: “jus ad bellum,” which speaks to when force is permissible, and the laws of war, which set guidelines for conduct during conflict. She emphasizes that while public debates often conflate legal and moral considerations, a nuanced understanding of existing international law is crucial for assessing the legality of actions in such conflicts.
Notwithstanding some recent competition, the Law School Admission Test (LSAT) remains the most widely used and accepted standardized test considered by American law schools to admit new students to law school. That is why it is significant news that the President/CEO of the Law School Admission Council (LSAC), the organization responsible for designing, administering, and grading the LSAT, recently announced changes to the LSAT’s format, beginning in August 2024.
Amherst professor Austin Sarat discusses the complex and often costly nature of exercising free speech, particularly in the wake of controversial statements made by universities and their students about the Hamas terrorist attack in Israel on October 7. Professor Sarat highlights the backlash faced by those who have spoken out, from university donors withdrawing support to law firms rescinding job offers, and he argues that while free speech is a right, it is not without significant repercussions—both socially and professionally.
Former federal prosecutor Dennis Aftergut argues that the election of Rep. Mike Johnson as Speaker of the House by House Republicans will likely harm the GOP in upcoming elections. Mr. Aftergut describes at least five reasons, including Johnson’s staunch anti-abortion stance, his role in perpetuating election denialism, his lack of experience in national fundraising, and various policy positions that could alienate swing voters and jeopardize the GOP’s chances in 2024.
UC Davis law professor Vikram David Amar discusses the upcoming Supreme Court case, Moore v. United States, which involves a tax issue concerning a husband and wife who are shareholders in a company located in India. Professor Amar argues in this column and in his amicus brief, which he co-authored with Professor Akhil Amar, that the tax in question is constitutional, drawing support largely from the Supreme Court’s 1796 case Hylton v. United States.