Articles Posted in Constitutional Law

Cornell Law professor Michael C. Dorf considers how the recent treatment of tennis player Naomi Osaka by the professional tennis establishment highlights key aspects of disability law. Professor Dorf argues that while reasonable people can disagree in many cases about what constitutes the “essence” of a sport for purposes of the Americans with Disabilities Act (ADA), no one can plausibly argue that speaking to reporters at a press conference is in any way essential to playing tennis.

Austin Sarat—Associate Provost and Associate Dean of the Faculty and Professor of Jurisprudence & Political Science at Amherst College—comments on a recent decision by a federal district judge in San Diego striking down California’s statewide ban on assault weapons. Professor Sarat observes that regardless of the outcome of the appeals in this case, the country will remain deeply divided about things like COVID-19 restrictions and gun ownership while our political leaders and the judges they appoint continue to repeat the underlying antipathies animating these divisions.

UNLV Boyd School of Law professor Leslie C. Griffin reflects on one of the earliest litigated ministerial exception cases, in which Billie Marie Barrett McClure sued the Salvation Army in 1971 for providing men with superior housing benefits as compared to women. Professor Griffin describes how the language of the petition for certiorari in that case (which was denied) raised some of the very issues that the Court did not fully consider until Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, which it decided in 2012.

Using recent statements from Rutgers University as an example, Illinois Law dean and professor Vikram David Amar describes certain cautionary factors that high-level university administrators should bear in mind before engaging in institutional speech. Dean Amar explains the complexity of institutional speech in higher education and suggests that even well-intentioned speech can lead to unexpected criticism and responses.

Cornell Law professor Sherry F. Colb comments on the U.S. Supreme Court’s recent decision in Caniglia v. Strom, holding that police may not enter a private home to perform a “community caretaking” function without having a search warrant. Professor Colb suggests that by recognizing limits on the authority of law enforcement officers to enter a home without a warrant in these circumstances, the Court may be implicitly adopting the message of “defunding the police” by reallocating a non-police function to better-suited responders, such as social workers or mental health experts.

In this second of a series of columns, Illinois Law dean Vikram David Amar and UC Davis Law professor emeritus Alan Brownstein continue their discussion of why the U.S. Supreme Court’s recent “Most Favored Nation” (MFN) approach to the Free Exercise Clause of First Amendment is troubling on a number of levels. Dean Amar and Professor Brownstein point out that an MFN-style approach is virtually guaranteed to cause geographical inequality because it relies upon fortuitous secular analogues.

Cornell Law professor Michael C. Dorf comments on last week’s announcement by the Facebook Oversight Board with its verdict regarding the company’s treatment of former President Donald Trump’s suspended account. Professor Dorf argues that the Board’s ruling makes sense in many respects, but makes two mutually exclusive demands of Facebook: clear rules for the sake of predictability and at the same time, flexibility for moderators to consider the individual context of a situation.

In this first of a series of columns, Illinois Law dean Vikram David Amar and UC Davis Law professor emeritus Alan E. Brownstein discuss the U.S. Supreme Court’s apparent adoption of a “most favored nation” approach to protecting religious liberty under the Free Exercise Clause. Dean Amar and Professor Brownstein describe some of the problems with this approach and point out that the reason religious exercise receives constitutional recognition and protection is not because the Constitution assigns some heightened value to religious belief and practices over secular interests, but because we do not want the state to interfere with religious choice and the autonomy of religious individuals to associate with a religion of their choice.

UF Levin College of Law professor and economist Neil H. Buchanan responds to apparent plans by some Republicans to bring back the debt ceiling to obstruct the Biden administration. Professor Buchanan explains why that would be a bad idea and also why, if they do, President Biden might be able to kill the debt ceiling as a political issue.

SMU Dedman School of Law professor Joanna L. Grossman and Stanford Law 1L Saraswati Rathod explain why recent efforts in various states to ban transgender women and girls from competing in women’s sports are dangerous and misguided. Professor Grossman and Ms. Rathod argue that the actions purport to solve a problem that doesn’t even exist, and they risk substantial harm to a vulnerable group of women and girls, as well as to women’s athletics across the board.

UNLV Boyd School of Law professor Leslie C. Griffin and University of Pennsylvania professor Marci A. Hamilton describe how the current Supreme Court is furtively undermining neutral and general laws by embracing a so-called “most favored nation” theory. Professors Griffin and Hamilton explain that under this dangerous approach, otherwise neutral laws that might incidentally burden religious exercise (such as zoning laws or public health regulations) are constitutionally suspect if they create any exceptions for purportedly secular activities, and, they argue, this can result in legal discrimination and harms to groups including LGBTQ+ individuals, children, those with disabilities, and others.

Illinois Law dean Vikram David Amar and UC Davis Law emeritus professor Alan E. Brownstein comment on a recent decision by the U.S. Court of Appeals by the Sixth Circuit holding that the First Amendment protects a college teacher who refused to respect student gender-pronoun preferences. Dean Amar and Professor Brownstein argue that the court may have reached the wrong outcome on the facts, and in doing so it unnecessarily decided the extent to which a key Supreme Court case should or should not apply to the public higher education setting.

Cornell Law professor Michael C. Dorf comments on a recent concurrence by Justice Clarence Thomas in a case in which the Court vacated as moot a federal appeals court ruling that the president cannot block users’ access to his Twitter account. Professor Dorf explains why Justice Thomas’s reasoning is deeply flawed, but he points out that Justice Thomas’s conclusion that the First Amendment might permit Congress to forbid Twitter from moderating content on its site finds unlikely support in arguments historically put forth by progressive politicians and scholars. In their view, very large private actors who exercise power over people’s lives comparable to and sometimes even exceeding that of government should be subject to the same sorts of norms that the Constitution applies to the government.

UF Levin College of Law professor Neil H. Buchanan describes the precarious situation of our democracy and notes that there are many necessary conditions for a constitutional republic to continue to operate, and because each is necessary, losing any of them would lead to the whole system crashing down. In this column, Professor Buchanan points out some of the many ways in which our nation could descend into autocracy.

Cornell Law professor Michael C. Dorf comments on a brief filed by Donald Trump’s former lawyer Sidney Powell in a defamation lawsuit brought by Dominion Voting Systems. Professor Dorf argues that Powell’s motion to dismiss the case should fail, but he notes that the argument presented in her brief is more subtle than is generally acknowledged.

UF Levin College of Law professor Neil H. Buchanan explains why it is not only possible and necessary to reform the president’s constitutional pardon power, but why doing so should be a high priority. Professor Buchanan argues that preventing future abuses of the pardon is critical to preventing its use as a tool of autocracy.

In this second of a series of columns, Illinois Law dean and professor Vikram David Amar comments on the Kentucky proposal to change the way U.S. Senate vacancies are filled. Dean Amar argues that the Seventeenth Amendment precludes such a proposal, which would allow the state legislature to substantively constrain the governor’s choices in making a temporary appointment.

Austin Sarat—Associate Provost and Associate Dean of the Faculty and Professor of Jurisprudence & Political Science at Amherst College—comments on the decomposition of the legal injection paradigm over the past few decades, since it was first adopted in Oklahoma in 1999. Professor Sarat observes the evolution of the procedure over time and points out that none of the changes has resolved lethal injection’s fate or repaired its vexing problems.

Marci A. Hamilton, a professor at the University of Pennsylvania and one of the country’s leading church-state scholars, argues that the federal Religious Freedom Restoration Act (RFRA) was the first “big lie” in that purported to “restore” case law but actually gave religious actors the right to be above the law. Professor Hamilton notes two bills that have been introduced in Congress that would take measures to carve back RFRA’s destructive reach and which would not, contrary to some claims, threaten true religious liberty.

In this first of a series of columns, Illinois Law dean and professor Vikram David Amar offers four observations about recent calls for reform of the filibuster device in the U.S. Senate. Dean Amar suggests looking at state experiences with supermajority rules, as well as the Senate’s own recent past, and he considers why senators might be reluctant to eliminate the filibuster. He concludes with a comment on President Joe Biden’s suggestion that the Senate return to the “talking filibuster” and praises a suggestion by Senator Tom Harkin (D-IA) that the cloture requirement (currently at 60 votes) could be lowered gradually, the longer a measure under consideration is debated.