Articles Posted in Constitutional Law

Cornell Law professor Michael C. Dorf explains the scope and limits of the Respect for Marriage Act (RMA), which would codify a federal right to same-sex marriage. Professor Dorf argues that while the RMA cannot guarantee marriage equality for the long run, for now, it seems like a sensible hedge against an increasingly reactionary Supreme Court.

Illinois Law dean Vikram David Amar continues his discussion of why the “Independent State Legislature” theory is incorrect and counter to the original understanding of the Constitution. Dean Amar points to four key errors the Petitioners in Moore v. Harper make in their filings with the Supreme Court and argues that some of their omissions demonstrate just how non-originalist their theory really is.

Attorney Jon May predicts that within the next six months, former President Donald Trump will be indicted for violating the Espionage Act arising from his possession of classified documents after he left the White House. Mr. May describes some of the challenges that potentially classified evidence poses for both Trump’s defense and for the prosecution.

Harvard Law professor emeritus Laurence H. Tribe comments on a decision by a federal judge in Texas vacating the Biden administration’s loan forgiveness program. Professor Tribe argues that Judge Mark Pittman, a Trump appointee, incorrectly concluded that the court had jurisdiction to review the challenge to the debt relief program and explains why judicial restraint is such a critical part of a constitutional republic.

Illinois Law dean Vikram David Amar explains what Moore v. Harper, the case the U.S. Supreme Court will hear in December involving the so-called “Independent State Legislature” (ISL) theory, tells us about principled originalism. Specifically, Dean Amar argues that to embrace ISL theory would mean flouting George Washington, the first Congress, and the makers of all the early post-ratification state constitutions (to say nothing of the Americans who adopted the Constitution against the backdrop of the Articles of Confederation’s apparent meaning)—indeed the very antithesis of originalism.

Touro Law professors Laura Dooley and Rodger Citron discuss a case in which the U.S. Supreme Court will consider the constitutionality of a state statute authorizing the exercise of general personal jurisdiction over corporations registered to do business in the state. Professors Dooley and Citron argue that the Court will almost certainly declare the state statute violates the due process rights of the defendant corporation, and they explore why that outcome is such a foregone conclusion.

Illinois Law dean Vikram David Amar, professor Jason Mazzone, and Yale College junior Ethan Yan comment on some of the issues created by Ben Sasse’s (R – Nebraska) expected departure from the U.S. Senate. Dean Amar, Professor Mazzone, and Mr. Yan describe the requirements and constraints of Nebraska state law and the U.S. Constitution.

Amherst professor Austin Sarat argues that there should be a constitutional right to counsel throughout the execution process, particularly given the frequency with which serious errors occur during that time. Professor Sarat calls upon courts to recognize that the execution process is a “critical stage” of a criminal proceeding deserving the defendant’s right to legal representation.

Cornell Law professor Michael C. Dorf argues that the U.S. Supreme Court’s recent cases demonstrate that the Supreme Court’s self-professed originalists are acting in bad faith, knowing that professed originalism is no more than a rhetorical envelope they can stuff with their conservative policy views. Professor Dorf explains why the Court’s new test of “text, history, and tradition” is unjust, insincere, and destabilizing.

Amherst professor Austin Sarat comments on the case of Kenneth Smith, whom Alabama plans to execute by lethal injection on November 17 based on a judge’s decision overriding a jury’s determination that he be sentenced to life in prison rather than death. Professor Sarat explains why such judicial override cases are so unjust, particularly given that Alabama has repealed judicial override (but not retroactively).

Cornell law professor Michael C. Dorf comments on the oral argument in National Pork Producers Council (NPPC) v. Ross, in which the U.S. Supreme Court is considering whether California’s Proposition 12 violates the dormant Commerce Clause. Professor Dorf observes that based on their questioning, the Justices are concerned about the case’s implications for other types of regulations based on a state’s moral interests and may seek a procedural “out” to avoid deciding the difficult question.

Illinois Law dean Vikram David Amar and professor Jason Mazzone comment on recent comments by U.S. Supreme Court Justice Elena Kagan expressing reservations about doctrinal changes attributable to the arrival of new Justices. Dean Amar and Professor Mazzone argue that new Justices have played an important and generally positive role in advancing the constitutional landscape.

Cornell Law professor Michael C. Dorf explains how Congress can (and argues that it should) protect affirmative action in private colleges and universities in light of the supermajority of the Supreme Court that seems hostile to affirmative action. Professor Dorf points out that even if his suggestion seems far-fetched in the current political climate, urgent calls for action now can effectively arm advocates to effect change when they are better positioned to do so in the future.

Amherst professor Austin Sarat comments on Alabama’s recent aborted execution of Alan Miller. Professor Sarat describes how the U.S. Supreme Court allowed Miller’s execution to go forward despite a serious dispute about whether Miller submitted a form electing an execution method other than lethal injection.

Cornell Law professor Michael C. Dorf comments on a recent decision by a federal district judge in Texas holding that a for-profit corporation was entitled to an exception from the legal obligation to provide employees with health insurance covering pre-exposure prophylaxis (PrEP), which protections against infection with HIV/AIDS. Professor Dorf explains the absurdity of the court’s conclusion, which is based on an extension of the Supreme Court’s dubious logic in Burwell v. Hobby Lobby.

Illinois Law dean Vikram David Amar and professor Jason Mazzone respond to several points about originalism made by Berkeley Law Dean Erwin Chemerinsky in a recent article published in The Atlantic. Dean Amar and Professor Mazzone explain why three claims in particular—that originalism is an “obscure legal theory” only a few decades old, that judicial review in the federal courts is anti-originalist, and that accurately determining original meaning is “impossible.”

Cornell Law professor Michael C. Dorf comments on a case currently before the U.S. Supreme Court involving a challenge by the pork industry to a California law—Proposition 12—that was adopted by referendum in 2018. Professor Dorf explains why Supreme Court should uphold Prop 12 against the plaintiffs’ “dormant” Commerce Clause claims, and he considers the implications of that holding on state power to ban abortion pills from other states.

Illinois Law dean Vikram David Amar and professor Jason Mazzone respond to a recent column by New York Times columnist David Leonhardt, arguing that neither of the recent high-profile developments after the Dobbs v. Jackson Women’s Health Organization decision is an example of “defying” the Court or “checking” judicial power. Dean Amar and Professor Mazzone point out that while neither the abortion vote in Kansas nor the pending federal marriage-equality proposal may fairly be characterized as “defying” or “checking,” some political reactions to Supreme Court rulings in the past arguably have involved defiance or disobedience of the Court.

Cornell Law professor Sherry F. Colb comments on U.S. Supreme Court Justice Samuel Alito’s July 28 keynote address at the Notre Dame Religious Liberty Summit in Rome, Italy. Professor Colb explains why Alito’s characterization of the Holocaust as a denial of religious liberty is untrue and misleading, and she points out that he uses his position of power to impose a specific brand of Christianity on unwilling people.

Cornell Law professor Michael C. Dorf comments on the possible significance of the Supreme Court’s decision to divide, rather than consolidate, argument in the affirmative action cases it will be deciding next term. Professor Dorf suggests the decision would allow Justice Ketanji Brown Jackson to participate in one of the cases and could also allow the Court to attend to at least two important factual and legal differences between the two cases.