Verdict

Marci A. Hamilton, a professor at the University of Pennsylvania and one of the country’s leading church-state scholars, explains why the rhetoric about a “decline” in religious liberty actually signals a decline in religious triumphalism, and is a good thing. Professor Hamilton describes how religious actors wield the Religious Freedom Restoration Act (RFRA) not as a shield, but as a sword to destroy the lives of fellow Americans.

In light of recent news that Pfizer and Moderna have apparently created safe and effective vaccines against COVID-19, Cornell law professor Michael C. Dorf considers whether the government can mandate vaccination for people who lack a valid medical reason not to get vaccinated. Dorf briefly addresses issues of federalism and religious objections to vaccination and then addresses the question whether mandatory vaccination might be inconsistent with a right to abortion.

UF Levin College of Law professor and economist Neil H. Buchanan explains why Donald Trump’s actions reflect an attempted coup and might still lead to a constitutional crisis. In this column, Buchanan first explains what a coup is and describes the ways that Trump has failed in his attempts thus far. Buchanan warns about how all this could still end in a constitutional crisis that Trump creates and exploits to stay in power.

Cornell law professor Sherry F. Colb considers one aspect of the oral argument in California v. Texas, the latest challenge to the Affordable Care Act to come before the U.S. Supreme Court. Specifically, Colb considers the way in which some of the Justices talked during the oral argument about the doctrine of judicial standing, and she calls out those Justices’ hypocrisy as to that issue.

UF Levin College of Law professor Neil H. Buchanan explains why “being patient with Trump” is a recipe for disaster, why there are still reasons to be guardedly optimistic, and why this all could still end very badly. Buchanan argues that the present situation is not guaranteed end badly, but he cautions that a Trump coup is eminently possible.

Amherst College Associate Provost Austin Sarat and attorney Daniel B. Edelman explain the important role of Democratic governors in preventing Republican state legislatures from stealing the election. Sarat and Edelman describe a “nightmare scenario” in which Republican legislatures may try to strip the electoral votes of Pennsylvania, Wisconsin, Michigan, Georgia, Arizona, and Nevada, leaving Biden with 232 electoral votes compared to Trump’s 306. The authors call upon the governors of those states to defend the integrity of their states’ election results, insist that there have been no “election failures,” and, if necessary, submit to Congress their own elector lists.

Cornell law professor Michael C. Dorf comments on the third challenge to the Affordable Care Act (ACA) that has made it before the U.S. Supreme Court, and considers how the case will play in the upcoming Georgia runoff elections. Dorf argues that absent a dramatic and highly unusual development—like a Supreme Court decision rejecting the ACA challenge in the next few weeks—that should help the Democratic candidates in Georgia’s runoff elections.

David S. Kemp, a professor at Berkeley Law, and Charles E. Binkley, MD, the director of bioethics at Santa Clara University’s Markkula Center for Applied Ethics, consider the implications of Pope Francis’s recently revealed statement endorsing same-sex civil unions as they pertain to a case currently before the U.S. Supreme Court. Kemp and Binkley argue that the Pope’s statement undermines the moral legitimacy of the Catholic organization’s position and casts a shadow on the premise of its legal arguments.

UNLV Boyd School of Law professor Leslie C. Griffin explains why stigma is a central concept that came up during oral argument before the Supreme Court in Fulton v. City of Philadelphia. Griffin points out that some religions have long supported racial discrimination, citing their religious texts, but courts prohibited such discrimination, even by religious entities. Griffin argues that just as religious organizations should not enjoy religious freedom to stigmatize people of color, so they should not be able to discriminate—and thus stigmatize—people based on sexual orientation.

Cornell law professor Sherry F. Colb comments on two particular aspects of a case in which the U.S. Supreme Court heard oral argument last month, Torres v. Madrid. First, Colb discusses the distinction, for Fourth Amendment purposes, between touching someone directly with one’s hands and touching someone indirectly using an inanimate object. Second, she explains the difference between holding and dicta in a court opinion. Using these two points as illustrations, Colb shows how flexible the Constitution can be, lending itself to very different interpretations.

UF Levin College of Law professor and economist Neil H. Buchanan explains why President Trump’s inept handling of the COVID-19 pandemic should disqualify him from even running for reelection, let alone returning to office. Buchanan argues that it is shocking that we cannot predict the outcome of the 2020 election in light of Trump’s failure to address the biggest health crisis in a century and his consistent efforts to undermine the public response every step of the way.

SMU Dedman School of Law professor Joanna L. Grossman describes the myriad ways the Trump administration has harmed the interests of women and expresses hope that the outcome of the 2020 Presidential Election will mark the end of the GOP’s war on women. Grossman notes that if Biden and the Democrats win the White House and Congress, they will have not only the opportunity but the obligation to restore what the modern GOP has destroyed.

Dean Falvy, a lecturer at the University of Washington School of Law in Seattle, explains why federalism—the autonomy of the states in our country—has been a significant barrier to many of the authoritarian projects Trump has advanced or considered. Falvy argues that the same autonomy should prevent Trump from manipulating the election results decisively in his own favor.

Cornell law professor Joseph Margulies wonders whether we can—and specifically whether he can—forgive President Trump for all of the bad things he has done. Margulies reflects upon his career of representing those people many regard as monsters and concludes that he cannot and will not join in demonizing President or anyone else. Margulies points out that there are no monsters; we create monsters so we can demonize others as different from “us.”

Austin Sarat, Associate Provost and Associate Dean of the Faculty and William Nelson Cromwell Professor of Jurisprudence & Political Science at Amherst College, and Dennis Aftergut, a former federal prosecutor, describe how the United States can repair the damage to democracy done over the last four years by Donald Trump. Sarat and Aftergut point out the numerous times in American history that have witnessed repairs after serious damage, including President Ford’s reform of the Justice Department after Watergate and President Roosevelt’s New Deal reform after Hoover’s laissez-faire response to the Depression.

UF Levin College of Law professor and economist Neil H. Buchanan debunks the Republican claim that Donald Trump and Republican leaders have handled (and are handling) the economy well. Buchanan points out that the only action that Trump and his party had taken on the economy before the pandemic was a two-trillion-dollar tax cut in 2017, which was weighted toward the rich and unpopular among the American public. Buchanan notes that even before the pandemic hit, workers were living in fear that their families would be destroyed by a medical catastrophe, and it is even worse now.

NYU law professor Samuel Estreicher comments on a recent decision by the U.S. Court of Appeals for the Seventh Circuit in which the court bucked a recent trend in lower courts by holding that that parties to private international arbitrations can obtain court-based discovery. Estreicher explains the facts of that case and notes that the court’s decision reinforces a circuit split that might end up before the U.S. Supreme Court.

UF Levin College of Law professor and economist Neil H. Buchanan describes how the U.S. Supreme Court is readying itself to declare Trump the winner of the election. Professor Buchanan points out that no court acting in good faith would apply the text of the Constitution or existing Supreme Court precedents in a way that would allow any of this scheme to see the light of day, but based on what Justice Kavanaugh has written and what Justice Gorsuch strongly suggests, the Court might not even have that minimum amount of good faith.

In this fourth of a series of columns examining the California v. Texas case challenging the Affordable Care Act (ACA), Illinois law dean Vikram David Amar, Michigan Law dean emeritus Evan Caminker, and Illinois law professor Jason Mazzone consider what the appropriate remedy should be if the challengers prevail on the merits of the case. The authors explain why enjoining the 2017 amendment, which zeroed out the potential tax penalty for failure to maintain the specified health insurance coverage, is a more appropriate remedy than striking down the entire ACA.

Amherst College Associate Provost Austin Sarat and attorney Daniel B. Edelman argue that there is nothing the Supreme Court can do to prevent governors from certifying slates of electors that actually reflect the vote of the people in their states. Sarat and Edelman explain why Bush v Gore is both inapplicable, and by its own terms, never supposed to be used as precedent.