Articles Posted in Constitutional Law

Cornell Law professor Michael C. Dorf discusses the effect and implications of Texas’s SB8 law and Missouri’s Second Amendment Preservation Act (SAPA) on federal law and the judiciary. Professor Dorf argues that both laws employ a strategy to circumvent federal court review, but suggests there may be growing recognition among Supreme Court Justices of the dangers posed by such laws, which seek to undermine federal authority and judicial review.

Criminal defense attorney Jon May critiques an argument by Harvard Professor Emeritus Laurence Tribe and Judge Michael Luttig that Donald Trump is automatically disqualified from running for President again under Section 3 of the 14th Amendment, even without a conviction for insurrection. Mr. May contends that such a reading of Section 3 could lead to political chaos and civil unrest, and argues that the U.S. Supreme Court, which has the ultimate say, may not endorse a self-executing interpretation that could have such far-reaching and divisive consequences.

NYU Law professor Samuel Estreicher comments on the U.S. Supreme Court’s recent decision striking down the use of racial preferences in college admissions at Harvard and the University of North Carolina, creating uncertainty about the future of affirmative action in both higher education and employment. Professor Estreicher points out that while the Court opposed the “outright racial balancing” used by the universities, it left room for race-based “make whole” remedies in cases of proven intentional discrimination, raising questions about the permissible extent of race-based remediation and its applicability in various contexts, including employment.

UC Davis Law professor Vikram David Amar and Yale College senior Ethan Yan discuss the complexities and legal questions around a potential U.S. Senate vacancy in New Jersey, focusing on the current political situation surrounding Senator Bob Menendez. Professor Amar and Mr. Yan conclude that while New Jersey law allows Governor Phil Murphy considerable discretion in filling a Senate vacancy, including the possibility of appointing his wife Tammy, such a move would likely be politically damaging, even if constitutionally permissible.

Amherst professor Austin Sarat describes how Fox News personality Greg Gutfeld has escalated right-wing attacks on American democracy by suggesting that elections are futile and calling for civil war as the only solution to the country's problems. Professor Sarat warns that Gutfeld’s rhetoric, unrepudiated by Fox News, poses an urgent threat to democracy and calls on the media and political leadership to educate the public on the dangers of such a mindset.

Cornell Law professor Michael C. Dorf analyzes whether the U.S. House of Representatives can choose a Speaker who is not a current member of Congress. While conventional wisdom suggests that a non-member could serve as Speaker due to the lack of explicit qualifications in the Constitution, Professor Dorf argues that this interpretation may be faulty, citing original understanding, historical practice, and functional considerations. Professor Dorf concludes that while the Constitution is unclear on this issue, the absence of explicit language should not be taken as carte blanche to make any choice, and that both liberals and conservatives should be cautious in their assumptions about what the Constitution does or does not allow.

Former federal prosecutor Dennis Aftergut discusses Fulton County District Attorney Fani Willis’s legal strategy in her case against Donald Trump and various co-defendants for an alleged conspiracy to overturn the 2020 election. Mr. Aftergut observes that Willis seems to be focusing on securing guilty pleas from less central co-conspirators to strengthen her case against major defendants like Trump, Rudolph Giuliani, and Sidney Powell, while potentially offering lesser charges to those willing to cooperate and testify, thereby avoiding the risk of revealing too much of her case before a full trial.

UC Davis Law professor Vikram David Amar discusses the ongoing legal battle over congressional redistricting in New Mexico, where Republicans have filed a lawsuit claiming that new district maps favor Democrats and violate the state constitution. Professor Amar emphasizes the importance for the New Mexico state courts to clearly base their rulings on the state constitution rather than the federal Constitution, and to justify their decisions more explicitly so as to demonstrate greater legitimacy.

Cornell Law professor Michael C. Dorf discusses the indictment against New Jersey Democratic Senator Robert Menendez, who is accused of accepting bribes to influence foreign relations and other matters. Professor Dorf acknowledges the legal presumption of innocence in a criminal trial setting but argues that due to the ethical responsibility Senators have towards their constituents and the country, they are not entitled to the same presumption in their role, and the weight of the allegations and evidence against Menendez should prompt his resignation or expulsion from the Senate.

Amherst professor Austin Sarat observes that the push for death penalty abolition in the United States faced a year of mixed outcomes in 2023, marked by a rise in executions but also legislative progress in some states like Washington. Professor Sarat observes that states like Alabama and South Carolina are making efforts to proceed with executions using new methods or secured drug supplies, Ohio and Tennessee have shown more cautious or progressive stances, signaling an incremental and complex journey toward abolition.

Cornell Law professor Michael C. Dorf discusses a recent legal battle over Texas’s placement of buoys and barriers in the Rio Grande River to deter migrants, a move ruled likely unlawful by Federal District Judge David Ezra. Professor Dorf criticizes Texas’s subsequent emergency stay appeal, argues that the state’s legal justifications are implausible and undermine federal supremacy, and suggests that the state is improperly attempting to sidestep federal authority on issues of national security and immigration.

Cornell Law professor Michael C. Dorf argues that while the recent departure of Stanford’s associate dean for Diversity, Equity, and Inclusion (DEI) is noteworthy, the broader issue is the legal status of diversity initiatives following the recent Supreme Court ruling in Students for Fair Admissions v. President and Fellows of Harvard College. Professor Dorf contends that despite the Court’s skepticism towards race-based affirmative action, DEI offices still have a legitimate role, albeit one that may need to adjust its approaches to promoting diversity and inclusion.

Former federal prosecutor Dennis Aftergut comments on the Fulton County indictment process involving Donald Trump and 18 others, including Kenneth Chesebro, who allegedly created the “fake elector” scheme. Mr. Aftergut explains the possible strategies by the prosecutor and defense, focusing on how Chesebro’s now-severed trial could pave the way for other prosecutions in the case, and provides insights into the evidence against him, emphasizing that a conviction in his trial could offer momentum for cases against Trump and other defendants.

erst professor Austin Sarat comments on the case of Gerald Pizzuto, whom the state of Idaho has sought to execute by lethal injection five times since his 1986 conviction for first-degree murder. Professor Sarat points out that U.S. District Court Judge B. Lynn Winmill, who ruled in Pizzuto’s case, recognized the inherent psychological cruelty of capital punishment, particularly when it involves repeated rescheduling of execution dates.

Cornell Law professor Michael C. Dorf responds to a recent Wall Street Journal “puff piece” on U.S. Supreme Court Justice Samuel Alito, arguing that, contrary to the op-ed authors’ assertion, Justice Alito’s purported commitment to textualism is disingenuous and that he finds ways (atextually, if needed) to vote consistently for ideologically conservative outcomes. Professor Dorf refutes Justice Alito’s claim that Congress lacks the authority to impose ethical standards on the Supreme Court, pointing out Congress’s historical role in shaping the Court and the existing ethics regulations that apply to the Justices.

In light of recent questions regarding the health of U.S. Senate minority leader Mitch McConnell (R-KY), UC Davis law professor Vikram David Amar examines Kentucky’s 2021 statute on filling Senate vacancies, which restricts the governor’s appointment power by requiring a choice from a list provided by the departing senator’s political party. Professor Amar expresses doubt about the law’s constitutionality in light of the Seventeenth Amendment and the historical intent to reduce political party influence in Senate appointments.

UC Davis Law professor Vikram David Amar comments on the Loper Bright case the U.S. Supreme Court will be hearing next term, which provides the opportunity for the Court to revisit (and potentially eliminate) the Chevron deference doctrine. Professor Amar points out and analyzes some of the constitutional issues raised by the doctrine.

Cornell professor Joseph Margulies comments on the U.S. Department of Justice’s investigation into the City of Memphis and its police department following the fatal beating of Tyre Nichols, which exposed a culture of violence and indifference within the department. While Professor Margulies welcomes this investigation as a step in the right direction, he argues that the Department of Justice lacks the tools and authority to address systemic issues related to policing and public safety in Memphis; ultimately, the solution must come from local initiatives and collaboration within the community.

Cornell professor Joseph Margulies comments on the U.S. Supreme Court’s decision in 303 Creative v. Elenis, in which the Court ostensibly held that a Colorado public accommodations law was unconstitutional as applied to website designer Lorie Smith because it compelled her to create artistic content in violation of her religious beliefs. Professor Margulies argues that the decision has potentially far-reaching implications that could return us to the days of Jim Crow—all because the stipulated facts in that case seemed (to some Justices) to lead to an inescapable result.

Illinois Law dean Vikram David Amar comments on the U.S. Supreme Court’s decision in Moore v. Harper, in which the Court forcefully repudiated the essence of the so-called “Independent State Legislature” (ISL) theory. Dean Amar describes the apparent evolution of several Justices’ views on ISL theory and explains how that evolution led to the Court’s sound rejection of the theory.