Analysis and Commentary Posted in 2022-06
(Yet) Another Reason ISL Theory is Wrong About the Meaning of the Term State “Legislature”: The Constitution’s References to the Federal Counterpart—“Congress”

In light of the Supreme Court’s decision to grant review of a North Carolina partisan gerrymandering dispute involving the Independent State Legislature (ISL) theory, Illinois Law dean Vikram David Amar offers yet another reason that the theory is critically flawed. Although Dean Amar has described in numerous publications why ISL theory is illogical and atextual, he newly observes that the Constitution uses another term—“Congress”—to refer at times to the legislative body and other times to the lawmaking process, inclusive of presidential involvement.

Clear Skies or Stormy Weather? The FAA’s Transportation Worker Exception After Southwest Airlines v. SaxonPart One of a Two-Part Series

In this first of a two-part series of columns on the Supreme Court’s decision in Southwest Airlines v. Saxon, Barry Winograd summarizes the facts leading up to the case and the Court’s decision and reasoning. In particular, Mr. Winograd explains the two prior decisions addressing the FAA’s transportation worker exemption, Circuit City Stores, Inc. v. Adams, decided in 2001, concluding that the residual clause in Section 1 covers only transportation workers and not workers generally, and New Prime, Inc. v. Oliveira, applying the exception to an interstate truck driver classified as an independent contractor and not an employee.

The Roadmap for Pregnant Girls and Women to Assert Their Religious Liberty to Invalidate Abortion Bans

University of Pennsylvania professor Marci A. Hamilton calls upon the majority of Americans to insist that their worldviews and beliefs—not just those of the extreme Christian right—be recognized in the courts. Professor Hamilton explains how many individuals seeking an abortion in states that prohibit them can use a Religious Freedom Restoration Act (RFRA) to obtain an exemption to the abortion ban.

The End of Roe v. Wade

In this first of a series of columns on the Supreme Court’s elimination of the constitutional right to abortion, SMU Dedman School of Law professor Joanna L. Grossman describes the history of the right to abortion and explains how the decision in Dobbs v. Jackson Women’s Health Organization changes both the legal landscape and also our constitutional conception of what it means to be full members of society. Professor Grossman argues that with this ruling, the Supreme Court has returned women to the service of society, rather than allowing them the dignity of an autonomous life, and that is only the beginning.

With Dobbs, We’re All in Bork’s America Now

Amherst professor Austin Sarat and former federal prosecutor Dennis Aftergut argue that Justice Samuel Alito’s majority opinion in Dobbs v. Jackson Women’s Health Organization, together with the language in Justice Clarence Thomas’s concurring opinion, put the country on a path toward the totalitarian state that one-time Supreme Court nominee Robert Bork had envisioned. Professor Sarat and Mr. Aftergut point out that Bork’s America would have a constitution that does not evolve or change to meet new circumstances and that affords no protection of citizens’ privacy from government intrusion

Goodbye to the Establishment Clause

UNLV Boyd School of Law professor Leslie C. Griffin comments on the U.S. Supreme Court’s decision in Kennedy v. Bremerton School District, in which the Court allowed a public-school football coach to lead players in his public Christian prayer. Professor Griffin argues that the decision effectively deletes the Establishment Clause from the Constitution and elevates the free exercise rights of a few individuals.

Democracy and the Tribal Blame Machine

Cornell Law professor Joseph Margulies describes the tribal blame machine, which both sides use to demonize the “other” side and drive us apart. Professor Margulies argues that a mature democracy must reject the tribal blame machine and instead embrace a fair, sober, even-handed appraisal of the facts, free from hyperbole and pot-banging.

Justice Alito’s Opinion on Abortion: Not Just the End of Reproductive Rights, But the Downfall of Fundamental Civil Liberties Guaranteed by the Fourth Amendment to All Americans

In this second of a series of columns on Dobbs v. Jackson Women’s Health Org., attorney Jon May argues that the decision threatens certain fundamental rights conferred by the Fourth Amendment. Mr. May predicts that those rights will not withstand the onslaught of law enforcement conduct in entering and searching our homes without a warrant, invading our private thoughts and associations found on our smart phones and computers, or stopping and searching us on the streets without probable cause or reasonable suspicion.

The Peculiar Historical Methodology of the SCOTUS Handgun Carry Case

Cornell Law professor Michael C. Dorf comments on the Supreme Court’s opinion in New York State Rifle & Pistol Assn., Inc. v. Bruen invalidating a New York law restricting licenses to carry concealed handguns to persons able to demonstrate a “special need” for one. Professor Dorf explains that the majority opinion adopts a methodology that focuses exclusively on history, which he argues could make it nearly impossible for government to protect people from new threats due to gun violence.

Social Security’s Good News is Good News

UF Levin College of Law professor and economist Neil H. Buchanan comments on the recent announcement that under one scenario, the depletion date of the Social Security trust funds is now one year later than previously predicted—now 2035. Professor Buchanan explains the significance of this announcement—that Franklin Delano Roosevelt’s visionary program will continue (for now) to protect all generations of Americans despite efforts of Republican autocrats to destroy it.

Happy the Elephant and Might Makes Right

Cornell Law professor Sherry F. Colb comments on a decision last week by the New York Court of Appeals dismissing a lawsuit that sought to free Happy the elephant from life as a caged attraction at the Bronx Zoo. Professor Colb rebuts the common argument that while humans are capable of fulfilling moral responsibilities and therefore have rights, nonhuman animals are incapable of fulfilling moral responsibilities and therefore lack rights.

The Supreme Court Further Dismantles the Establishment Clause, Empowers Religious Parents to Obtain Taxpayer Funds for Sectarian Schools, and Ignores the Rights of the Children in Carson v. Makin

University of Pennylvania professor Marci A. Hamilton comments on the U.S. Supreme Court’s decision earlier this week in Carson v. Makin, in which it held the Free Exercise Clause requires Maine to subsidize religious private schools because it subsidized non-religious private schools. Professor Hamilton argues that the decision further erodes the Establishment Clause and disregards the rights and needs of children.

The Complicity of the ‘Comfortable Liberals’ in the Decline of American Constitutional Democracy

UF Levin College of Law professor Neil H. Buchanan points out that some Democratic elites are complicit in the decline of American constitutional democracy when they support conservative policies and talking points in order to preserve their own personal comfort. Professor Buchanan points to the acceptance of the empty idea of “cancel culture” and the rejection of progressive prosecutors as two examples of this complicity.

The Religious Freedom Restoration Act Formula Comes Full Circle in Florida

University of Pennsylvania professor Marci A. Hamilton comments on the recent news that the Congregation L’Dor Va-Dor, a Jewish synagogue in Florida, has sued the state under the Florida Religious Freedom Restoration Act (RFRA) over its new restrictive abortion laws that it argues violate their religious faith. Professor Hamilton praises the synagogue for leading the charge against an oppressive minority but condemns the tool it must use to do so—RFRA— which Hamilton argues is a tried-and-true path to religious division and mutual intolerance.

New York’s High Court Rejects a Habeas Corpus Petition on Behalf of a Captive Elephant

Cornell Law professor Michael C. Dorf comments on a recent decision by the New York Court of Appeals ruling that Happy, an Asian elephant who has been imprisoned at the Bronx Zoo for nearly her entire half-century of existence—was not entitled to the writ of habeas corpus. Professor Dorf points out the questionable logic and errors that led the court to its conclusion and suggests that, despite the sad ending for Happy, her case might mark a turning point in the legal rights of nonhuman animals, evidenced by the thoughtful and compassionate dissent by two members of that court.

Justice Alito’s Opinion on Abortion: Not Just a Threat to Reproductive Rights, but to All Constitutional Liberties Not Expressly Set Out in the Constitution

Attorney Jon May argues that the reasoning of Justice Samuel Alito’s leaked majority draft of Dobbs v. Jackson Women’s Health Org. poses a threat not only to reproductive rights, but to all constitutional liberties not expressly enumerated in the Constitution. Mr. May points out that the radical departure of Justice Alito’s opinion could pave the way for the Court to overturn numerous rights recognized over the past seventy years deriving from the First, Fourth, Fifth, Sixth, and Fourteenth Amendments.

Three Questions that the House Select Committee’s Spellbinding Second Hearing Asks All of Us

Former federal prosecutor Dennis Aftergut describes three future-oriented questions the House Select Committee investigating January 6 poses to all Americans: (1) Do we choose to live in a fact-based world? (2) Do we recognize the danger that Trump’s continuing Big Lie poses to our ability to choose our own leaders? And (3) if we do, will we demand accountability for those whose misdeeds still threaten us?

Was It Really a Threat to Democracy?

Cornell Law professor Joseph Margulies observes that while the events of January 6, 2021, were “horrific,” “criminal,” and “anti-democratic,” he suggests that they were never a true threat to democracy. Professor Margulies points out that polling may be misleading and that overblown partisan rhetoric, by either side, does not equip us to confront true challenges to democracy when they do arise

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