Analysis and Commentary Posted in 2022-04
When Is Revising Admissions Criteria to Alter the Racial Makeup of a School’s Student Body Constitutionally Problematic? A Recent Case from Virginia on the Court’s “Shadow” Docket May Offer Some Hints

Illinois Law dean Vikram David Amar and professor Jason Mazzone comment on a recent case from Virginia that suggests when revising admissions criteria to alter the racial makeup of a school’s student body is constitutional (and when it is not). Dean Amar and Professor Mazzone point out that although some Supreme Court Justices have suggested in dicta and dissents some permissible options, they may very well decide that those options too are impermissible, despite the natural and reasonable reliance on those writings.

Lawyers’ Special Role in Preserving Democracy: More Important Today Than When First Described by a Great Chronicler of America

Former federal prosecutor Dennis Aftergut describes the special role that lawyers play in preserving democracy—a role even more important today than it was at the county’s founding. Mr. Aftergut calls lawyers to action particularly in light of the news of a forthcoming memoir by Geoffrey Berman, the former US Attorney for the Southern District of New York who resigned rather than carry out former President Trump’s efforts to bring weak cases against political opponents.

Could the Next Coup Attempt Hinge on the Meaning of the Twelfth Amendment? Why Risk it?

UF Levin College of Law professor and economist Neil H. Buchanan argues that Democrats should expressly reject (rather than implicitly accept) Republicans’ erroneous interpretation of the Twelfth Amendment, on the off chance it matters in the next coup attempt. Professor Buchanan explains why the Twelfth Amendment’s fallback provision applies only when the Electoral College vote is a tie.

McCarthy Survives Having Told the Truth in an Upside Down House Republican Conference

Former federal prosecutor Dennis Aftergut comments on Wednesday’s GOP conference meeting in which House Minority Leader Kevin McCarthy attempted to distance himself from recorded comments he made immediately after the January 6 insurrection. Mr. Aftergut argues that the only way to keep our republic from falling apart is for journalists, public officials, and citizens to keep fighting for public truth.

What Did the Justices Say About Football Prayer? The Oral Argument in Kennedy v. Bremerton School District

UNLV Boyd School of Law professor Leslie C. Griffin comments on Monday’s oral argument in Kennedy v. Bremerton School District, which presents a question about the intersection between the Free Exercise Clause, the Establishment Clause, and government speech jurisprudence. Professor Griffin describes how various Justices approached the case and what we might learn about how they are inclined to vote.

The January 6 House Select Committee’s New Filing Shows Us Why Attorney General Garland Should Indict Mark Meadows

Former federal prosecutor Dennis Aftergut argues that the January 6 House Select Committee’s new filing provides further support for the indictment of former Trump chief of staff Mark Meadows. Mr. Aftergut calls upon Attorney General Merrick Garland to fulfill his vow to uphold the Constitution by enforcing compliance with lawful congressional subpoenas.

Textualism Masks Ideological Opposition to the Administrative State

Cornell Law professor Michael C. Dorf comments on the recent decision by U.S. District Judge Kathryn Kimball Mizelle invalidating the federal mask mandate for travelers. Professor Dorf points out the flaws in Judge Mizelle’s reasoning and argues that her ruling reflects a right-wing ideology that is hostile to government agencies addressing even the most pressing social problems.

For Domestic Consumption Only: Digesting Russia’s Rancid Case for War

Dean Falvy, a lecturer at the University of Washington School of Law in Seattle, describes the parallels between Russia’s invasion of Ukraine and Hitler’s invasion of Poland. Mr. Falvy argues that even if Russia can wrest more territory from Ukraine in the short term, it is difficult to foresee an end to the war it has started.

The Chief Justice’s Dissents Confirm He’s Not In Charge. Let’s Just Call It the “McConnell Court”

Former federal prosecutor Dennis Aftergut comments on three recent Supreme Court decisions in which Chief Justice John Roberts joined the dissent, demonstrating that he does not carry sway in decisions on central issues such as a woman’s right to choose, voting rights, or protecting the environment. Mr. Aftergut points out that how the Justices vote in the upcoming decision in Dobbs v. Jackson Women’s Health Organization will reveal whether the Roberts Court can preserve the core principles of judicial restraint in constitutional adjudication and stare decisis—or whether it is more appropriately called the “McConnell Court.”

Religious Freedom in Prisons and the Military

Cornell Law professor Michael C. Dorf explains how the U.S. Supreme Court’s recent seemingly inconsistent decisions in Ramirez v. Collier and Austin v. U.S. Navy Seals 1–26can be reconciled by examining the nature of the government interests in each case. Professor Dorf points out that while the Court has held judicial deference to prison officials’ expert judgment on security questions impermissible under RLUIPA, it has not (and did not in the Navy Seals case) decided whether deference to the military is compatible with RFRA and whether, if not, RFRA is unconstitutional.

Governor Greg Abbott’s Unconstitutional War on Trans Children (and Their Parents)

SMU Dedman School of Law professor Joanna L. Grossman describes the American child welfare system and argues that Texas Governor Greg Abbott’s attempt to weaponize state child abuse law against trans children and their parents is grossly unconstitutional. Professor Grossman points out that the child welfare system gives parents broad discretion to make medical decisions for their children, and a state cannot simply decide that a particular type of medical treatment constitutes child abuse because it is politically opposed to it.

Living in Capital Punishment Limbo

Amherst professor Austin Sarat describes the current state of capital punishment in the United States, in particular, the 27 states that authorize death sentences but have not actually carried out an execution in the last five or ten years. Professor Sarat argues that this limbo for death row inmates causes unnecessary suffering and reflects an appropriate reluctance to kill in the name of the state.

Trump Gives An Interview That Will Have Investigators Licking Their Chops

Former federal prosecutor Dennis Aftergut discusses three things that former President Donald Trump said that potentially demonstrate evidence of a guilty mind trying to cover up his actions. Mr. Aftergut points out that anyone who is potentially the target of an investigation—as Trump is—should resist the impulse to speak out.

Taking the Liberation Pledge

Cornell Law professor Sherry F. Colb describes the “liberation pledge”—a commitment to consume only vegan food and clothing and refrain from eating anything while in the company of people who are eating animals and/or the secretions of animals. Professor Colb explains the reasoning behind the pledge and suggests that one way of fulfilling the second part of the pledge in a nonconfrontational would be to invite non-vegan friends to share in a vegan meal.

New Federal Law Reminds Americans of What Lynching Really Means

Amherst professor Austin Sarat describes how politicians have misused the term “lynching” for their own political purposes, thereby threatening to dilute its meaning. Professor Sarat praises President Biden for signing into law the Emmett Till Antilynching Act and calls upon the president and Attorney General Merrick Garland to use its historic passage to put the full weight of the federal government behind efforts to stem the epidemic of hate crimes plaguing this country.

So-Called Cancel Culture Is a Vacant Concept, So It Can Be Turned Back Against the Culture Warriors

UF Levin College of Law professor and economist Neil H. Buchanan argues that the label of “cancel culture” is a vacant concept, but because of its now widespread use, we should overuse the phrase so as to dilute and mock it. Professor Buchanan points out that, despite current popular opinion, the right to speak is not the same as a right to have other people listen.

Meet our Columnists
Vikram David Amar
Vikram David Amar

Vikram David Amar is the Dean and Iwan Foundation Professor of Law at the University of Illinois... more

Neil H. Buchanan
Neil H. Buchanan

Neil H. Buchanan, an economist and legal scholar, holds the James J. Freeland Eminent Scholar... more

John Dean
John Dean

John Dean served as Counsel to the President of the United States from July 1970 to April 1973.... more

Michael C. Dorf
Michael C. Dorf

Michael C. Dorf is the Robert S. Stevens Professor of Law at Cornell University Law School. He... more

Samuel Estreicher
Samuel Estreicher

Samuel Estreicher is the Dwight D. Opperman Professor, Director, Center for Labor and Employment... more

Leslie C. Griffin
Leslie C. Griffin

Dr. Leslie C. Griffin is the William S. Boyd Professor of Law at the University of Nevada, Las... more

Joanna L. Grossman
Joanna L. Grossman

Joanna L. Grossman is the Ellen K. Solender Endowed Chair in Women and Law at SMU Dedman School... more

Marci A. Hamilton
Marci A. Hamilton

Professor Marci A. Hamilton is a Professor of Practice in Political Science at the University of... more

Joseph Margulies
Joseph Margulies

Mr. Margulies is a Professor of Law and Government at Cornell University. He was Counsel of... more

Austin Sarat
Austin Sarat

Austin Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science at... more

Laurence H. Tribe
Laurence H. Tribe

Laurence H. Tribe is the Carl M. Loeb University Professor Emeritus at Harvard University and... more

Lesley Wexler
Lesley Wexler

Lesley Wexler is a Professor of Law at the University of Illinois College of Law. Immediately... more