Articles Posted in Constitutional Law

UC Davis Law professor Vikram David Amar discusses the legal arguments surrounding Robert F. Kennedy Jr.’s attempt to remain on some state ballots for the 2024 presidential election, particularly focusing on the applicability to presidential elections of the Supreme Court’s U.S. Term Limits, Inc. v. Thornton ruling. Professor Amar argues that invoking the Term Limits case in the context of presidential elections is logically flawed and historically inaccurate, as Article II of the Constitution grants states broad powers in selecting presidential electors, unlike the more restricted state powers in congressional elections addressed in Term Limits.

Amherst professor Austin Sarat discusses the state of capital punishment in the United States, reflecting on the recent milestone of 1,600 executions since 1976 and examining trends in public opinion, exonerations, and execution practices. Professor Sarat argues that while the country has made progress toward abolition, persistent issues such as false convictions, racial bias, and botched executions highlight the fundamental flaws in the death penalty system.

UC Davis Law professor Vikram David Amar and researcher Ethan Yan discuss age-based discrimination in absentee voting laws across eight U.S. states, examining their compatibility with the Twenty-Sixth Amendment to the Constitution. Professor Amar and Mr. Yan argue that these laws, which favor older voters, violate the Amendment's clear prohibition of age discrimination in voting rights and should be challenged in court, criticizing recent circuit court decisions that have failed to properly interpret the Amendment's equality mandate.

Retired UC Berkeley Law professor Jan Vetter discusses the Supreme Court’s decision in Garland v. Cargill, which invalidated a regulation classifying bump stocks as machine guns, and examines the Court’s approach to statutory interpretation. Professor Vetter argues that the Court’s majority, led by Justice Clarence Thomas, took an overly narrow and literal interpretation of the statute, neglecting to consider legislative intent and the broader purpose of the law, and he suggests that judges should act more as partners with the legislature in interpreting statutes to achieve their intended policy goals.

Cornell Law professor Michael C. Dorf discusses the adoption of “expressive activity policies” by colleges and universities in response to recent campus protests, examining the legal and practical implications of such policies. Professor Dorf argues that it is a mistake for educational institutions to frame their regulations as targeting expressive activities specifically, suggesting instead that they should focus on content-neutral conduct regulations that apply equally to expressive and non-expressive activities.

Amherst professor Austin Sarat discusses the case of Richard Glossip, an Oklahoma death row inmate whose conviction has been challenged by the state’s attorney general, and the broader constitutional question of executing innocent people. Professor Sarat argues that the Supreme Court should use Glossip’s case to explicitly state that the Constitution forbids punishing innocent people, overturning previous jurisprudence that prioritized legal technicalities over justice.

UC Davis Law professor Vikram David Amar analyzes a recent Eighth Circuit ruling on Missouri’s Second Amendment Preservation Act (SAPA), which seeks to protect gun rights by limiting state cooperation with federal firearm laws. Professor Amar argues that while parts of SAPA are unconstitutional, the Eighth Circuit’s reasoning is flawed, particularly in its assertion that a state cannot withdraw enforcement support for federal laws based on its belief that those laws are unconstitutional, and suggests that the case may warrant Supreme Court review.

Cornell Law professor Michael C. Dorf discusses a federal judge’s ruling that enjoins New York’s attorney general from enforcing state laws against crisis pregnancy centers promoting “abortion pill reversal” (APR) on First Amendment grounds. Professor Dorf argues that the ruling misunderstands the state’s interest in protecting citizens’ health and safety, asserting that the government should be able to regulate potentially false or dangerous medical claims even when they are made without commercial motive.

UC Davis Law professors Vikram David Amar and Ashutosh Bhagwat analyze the antitrust lawsuit filed by X Corp. (formerly Twitter) against the World Federation of Advertisers and other corporations, examining potential legal barriers to the suit under antitrust law and the First Amendment. Professors Amar and Bhagwat argue that X’s lawsuit faces significant challenges, primarily because the alleged boycott likely falls under First Amendment protection similar to that granted in NAACP v. Claiborne Hardware, and because forcing advertisers to advertise on X would constitute compelled speech, which is generally prohibited under recent Supreme Court precedents.

Amherst professor Austin Sarat discusses the use of life without parole (LWOP) sentences in the United States, examining upcoming state supreme court cases challenging these sentences and the historical role of death penalty abolitionists in promoting LWOP as an alternative to capital punishment. Professor Sarat argues that death penalty abolitionists should now reconsider their support for LWOP, recognizing it as another form of “death penalty” and joining efforts to scale back its use, especially given its disproportionate impact on young offenders and people of color.

Cornell Law professor Michael C. Dorf discusses recent court decisions blocking President Biden’s student debt forgiveness programs, including the Supreme Court’s invalidation of his initial plan and the Eighth Circuit’s ruling against the subsequent SAVE plan. Professor Dorf argues that these decisions reflect a broader assault on administrative power by Republican-appointed judges, leveraging doctrines like the major questions doctrine to hamstring effective regulation, and suggests that the Republican-packed judiciary, rather than the Biden administration, is the true culprit behind the failure of student debt relief efforts.

Amherst professor Austin Sarat discusses the case of Marcellus Williams, a death row inmate in Missouri, and the broader issue of false convictions in capital cases due to unreliable informant testimony. Professor Sarat argues that Williams’s case exemplifies the urgent need for reform in the use of informant testimony in criminal trials, proposing several measures to improve the reliability and transparency of such evidence in order to prevent miscarriages of justice.

Amherst professor Austin Sarat discusses the South Carolina Supreme Court’s recent decision allowing the state to carry out executions using the electric chair, firing squad, or lethal injection. Professor Sarat criticizes the ruling, arguing that it effectively nullifies constitutional protections against cruel punishment by permitting inhumane methods of execution under the guise of providing inmates with a choice, thus failing the citizens of South Carolina.

Amherst professor Austin Sarat discusses Supreme Court Justice Neil Gorsuch’s newly published book Over Ruled: The Human Toll of Too Much Law and his recent public statements criticizing excessive regulation. Professor Sarat argues that despite Gorsuch’s attempts to present himself as a champion of ordinary Americans, his judicial record and conservative stance on federal regulations suggest that his book’s message should be viewed skeptically, as reduced regulation often benefits powerful interests at the expense of workers, the disabled, and environmental protection.

Amherst professor Austin Sarat discusses Alabama's plan to execute Alan Lee Miller using nitrogen hypoxia, exploring the method's history, claims of humaneness, and the recent controversial execution of Kenneth Smith using this method. Professor Sarat argues that the gruesome details of Smith's execution expose the brutality of nitrogen hypoxia, contradicting proponents' claims of its safety and humaneness, and calls for Alabama to cancel Miller's execution or for courts to intervene and prevent it.

Cornell Law professor Michael C. Dorf discusses the upcoming U.S. elections, focusing on New York State’s Proposal 1 (a state Equal Rights Amendment) and its potential effect on abortion rights. Professor Dorf argues that while Proposal 1 is a positive step towards protecting abortion rights in New York, it cannot guarantee these rights in the face of potential federal anti-abortion policies, emphasizing the critical importance of both state and federal elections in safeguarding civil liberties.

UC Davis Law professor Vikram David Amar and professor emeritus Alan E. Brownstein discuss the U.S. Supreme Court’s recent decision in Trump v. United States regarding presidential immunity, drawing parallels to the Court’s interpretation of state sovereign immunity under the Eleventh Amendment. Professors Amar and Brownstein argue that in both cases, the Court has ignored the original public meaning of the Constitution, compromising the rule of law by allowing government officials to escape accountability for unlawful acts, while noting that the vagueness in the Trump decision may leave room for future refinement of the immunity framework.

Amherst professor Austin Sarat examines the role of racial bias in California’s death penalty system, drawing on various studies and statements from political figures like Kamala Harris and Gavin Newsom. Professor Sarat argues that despite California’s progressive reputation and efforts to address racial injustice, the state’s capital punishment system remains plagued by racial disparities, supporting the call for its abolition.

Stanford Law visiting professor Joanna L. Grossman and Boston University law professor Linda C. McClain discuss the sexist and misogynistic rhetoric employed by Donald Trump and J.D. Vance in their political campaigns, particularly focusing on their attacks against Vice President Kamala Harris. Professors Grossman and McClain argue that these attacks, which include criticizing Harris for being “childless” and labeling her a “DEI hire,” are part of a broader Republican strategy to reinforce patriarchal values and undermine women’s progress in politics and society.

UC Davis Law professor Vikram David Amar analyzes Judge Aileen Cannon’s dismissal of the improper-documents-handling indictment against former President Donald Trump, focusing on Judge Cannon’s interpretation of the Appointments Clause and its implications for Special Counsel Jack Smith’s appointment. In this second in a series of columns, Professor Amar argues that Judge Cannon’s ruling is flawed because it fails to consider the broader constitutional context and ignores that the current arrangement with Smith does not meaningfully differ from alternative setups that would be unquestionably constitutional, thus suggesting a need for a more flexible interpretation of the relevant statutes.