Articles Tagged with SCOTUS

Could the Conservative Attack on the Administrative State be Good for Net Neutrality—and for Progressive Regulation More Generally?

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Cornell law professor Michael C. Dorf anticipates the possible next steps in the federal government’s lawsuit against California over the state’s new law mandating net neutrality. Dorf explains why, if conservative scholars and Supreme Court justices succeed in what seems to be their goal of weakening federal regulatory agencies, that could ironically be a boon to net neutrality and to government regulation more broadly.

What Kavanaugh Could Have Said, But Didn’t: “I Honestly Don’t Know What Happened, and I’m Willing to Accept the Senate’s Judgment”

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GW Law professor and economist Neil H. Buchanan writes a letter that Supreme Court nominee Brett Kavanaugh could have written (but didn’t) in response to allegations that he sexually assaulted and attempted to rape a 15-year-old girl when he was a 17-year-old high school student. Using a fictional letter as a rhetorical device, Buchanan points out that Kavanaugh could have acknowledged that he, like anyone who has ever drunk to excess, does not recall exactly what he did or did not do while drunk, particularly on the night in question, but instead, Kavanaugh flatly denied that the allegations could be true. Buchanan argues that Kavanaugh’s response to the allegations demonstrates that he does not belong on the US Supreme Court.

Kavanaugh Must Consider Withdrawing: No More Liars on the High Court, Please!

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John W. Dean, former White House counsel to President Richard Nixon, shares the statement he made to the Senate Judiciary Committee on September 7, 2018, during the confirmation hearings of Judge Brett Kavanaugh. Dean also argues that Judge Kavanaugh’s denials of lying under oath in his earlier 2004 and 2006 confirmation proceedings, and the fact that he must now lie under oath again to get confirmed to the Supreme Court, have disqualified him for the job.

The Ongoing Salience of Brett Kavanaugh’s Lurid Memo to Ken Starr

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Cornell law professor Michael C. Dorf comments on the recently publicized memorandum Brett Kavanaugh wrote in 1998 in the course of his work for Independent Counsel Kenneth Starr, who was conducting the investigation of President Bill Clinton. Dorf points out that the sexually explicit questions Kavanaugh proposed in his memo should have been ruled inadmissible under applicable procedural rules. Inspired by Kavanaugh’s own line of questioning, Dorf concludes by proposing a question that he calls upon a senator to ask Judge Kavanaugh during his nomination hearing.

Supporting Religion is Not Always Good for Religious Freedom

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UNLV Boyd School of Law professor Leslie C. Griffin explains why broad support of religion is not necessarily good for religious freedom. Specifically, Griffin looks at the position of Judge Brett Kavanaugh on a number of issues from his time on the bench and before, and predicts that as a justice of the US Supreme Court, he is unlikely to ensure everyone’s constitutional rights are protected, but only those of certain groups.

“Casing” Brett Kavanaugh: Why Senate Hearings Can and Should Explore His Views on Past Supreme Court Cases, and at the Very Least His Views on Applying Originalism Where It Would Lead to Progressive Results

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Illinois Law dean and professor Vikram David Amar explains why the norm of not asking a Supreme Court nominee about his specific views about specific cases does not make sense and renders the hearing unhelpful in evaluating him as a potential justice. Amar explains the distinction between promising to rule in a certain way and predicting how one might rule, and he debunks some of the reasons often given for the norm of not asking (or answering) these types of questions during the confirmation hearing.

Why I Didn’t Sign the Kennedy Clerks’ Letter Supporting Confirmation of Brett Kavanaugh

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Cornell law professor Michael C. Dorf describes why he chose not to join the 72 other former law clerks of Justice Anthony Kennedy who signed a letter urging the confirmation of Judge Brett Kavanaugh. Dorf explains that the letter is at best misleading, and he argues that while a norm of deference may be preferable, that norm no longer exists, and deference to the president’s choice in this age of extreme polarization would amount to unilateral Democratic disarmament.

What We Can Learn About Stare Decisis (Respect for Precedent) from the Last Supreme Court Term

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Illinois Law dean and professor Vikram David Amar comments on two decisions from the US Supreme Court’s 2017–18 term in which the Court notably overruled two longstanding constitutional precedents by 5–4 votes. Amar discusses the doctrine of horizontal stare decisis—the Court’s respect for its prior rulings—and focuses on three questions in particular these two cases present.

Collins v. Virginia: An Innocuous, Fourth Amendment Decision About Curtilage

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Cornell law professor Sherry F. Colb comments on the US Supreme Court’s precedents recognizing, yet not clearly defining, “curtilage”—the area near one’s house that is constitutionally protected against warrantless searches by law enforcement. As Colb explains, the Court’s cases involving curtilage, including its recent decision in Collins v. Virginia leave many Fourth Amendment questions unanswered.

Replacing Justice Kennedy: Why Roe Won’t Be (Formally) Overruled, Same-Sex Marriage Rights Won’t Be Undone, and Affirmative Action Won’t Be Terminated, but Electoral Reform Could Suffer Greatly

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Illinois Law dean and professor Vikram David Amar argues that while Justice Anthony Kennedy’s retirement from the US Supreme Court will change the institution, it may not result in a significant shift to the right on some hot-button issues, as many anticipate. Amar explains that the greatest casualty of Justice Kennedy’s retirement might be electoral reform—not reproductive rights, same-sex marriage, or affirmative action.

The Supreme Court and Conservatives’ Right Not to Be Associated in Any Way With Disagreeable Things

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GW Law professor and economist Neil H. Buchanan argues that the pro-business, anti-union expressed during oral argument and in the majority opinion in Janus v. AFSCME, written by Justice Samuel Alito and joined by the other conservative justices including Justice Anthony Kennedy, epitomizes both Kennedy’s right-wing fundamentalism and the direction in which the Court would have continued to move even if he had chosen not to retire. Buchanan points out that the trend among the conservative justices is to insulate conservatives—especially Christian Republicans—from having to be in any way connected to anything with which they disagree, such as collective bargaining, sexual liberation, or provision of contraception.

Justice Kennedy’s Civil Procedure Legacy

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Touro Law professor Rodger D. Citron comments on a less-discussed aspect of retiring Justice Anthony Kennedy’s jurisprudence: civil procedure. As Citron explains, Justice Kennedy did not author many civil procedure opinions, but the ones he did write were decidedly pro-business—limiting access to courts, capping punitive damages, and restricting personal jurisdiction in a personal injury context.

Can State Supreme Courts Protect Liberal Constitutionalism in the Coming Era of Reactionary SCOTUS Jurisprudence?

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Cornell law professor Michael C. Dorf comments on the suggestion that liberals who are distressed about the impending era of reactionary US Supreme Court jurisprudence should focus efforts on change at the level of state supreme courts. Without discouraging such efforts, Dorf explains why this approach faces significant obstacles, and he argues that anyone concerned about the direction of the Court should not restrict their political activities to judicial elections but engage in organized opposition on multiple fronts.

Is Demonstrated Animus Irrelevant After Trump v. Hawaii?

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Chapman University Fowler School of Law professor Celestine McConville considers whether the US Supreme Court’s decision in Trump v. Hawaii establishes a new equal protection rule regarding when the presence of government animus will invalidate government action. McConville points out that under Trump, a stated nondiscriminatory justification will outweigh demonstrated animus, provided the means are “plausibly related” to that justification—a bar so low, she argues, it does a disservice to the integrity of equal protection doctrine.

A Strong Anti-Choice Signal From the Court

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UNLV Boyd School of Law professor Leslie C. Griffin discusses the US Supreme Court’s recent decision in NIFLA v. Becerra, in which a 5–4 majority of the Court struck down a California law requiring crisis pregnancy centers to inform their pregnant patients about abortion options. Griffin explains why the majority’s decision can only be read as a strong anti-choice signal that will only grow stronger with Justice Kennedy being replaced.

Questioning Justice Kennedy’s Replacement: Pay Attention Not Just to Roe v. Wade but Also the Right to Privacy and Contraception

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Marci A. Hamilton, professor and resident senior fellow in the Program for Research on Religion at the University of Pennsylvania, explains why the impact of Justice Anthony Kennedy’s retirement from the US Supreme Court touches far more than just the issue of abortion—but the very notion of a constitutional right to privacy. Hamilton argues that if the Federalist Society has its way, the core reasoning of Roe v. Wade will be eviscerated and the constitutional right to privacy—from which the right to access to contraception and the right to engage in consensual sexual relations in private—will be eroded.

Kennedy’s Sadly and Unnecessarily Tainted Legacy

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GW law professor and economist Neil H. Buchanan comments on Justice Anthony Kennedy’s announcement that he is retiring from the Supreme Court and the legacy he leaves. Buchanan laments that Justice Kennedy’s last term on the bench can only be described as tragedy, as he joined the conservative 5–4 majority on critical cases that Buchanan predicts will have a lasting harmful effect on individuals across the country and the world.

Carpenter and the Beginning of the End of Privacy

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Cornell law professor Sherry F. Colb comments on the US Supreme Court’s recent decision in Carpenter v. United States, in which the Court held that the government must have a search warrant to obtain an individual’s cell-site location information (CSLI). Colb describes the Court’s holding and the dissenting opinions, and considers the Court’s minority (but growing) view that only property, and not privacy, is protected under the US Constitution—particularly when privacy rights encompass the right of a woman to obtain an abortion and the right of same-sex couples to engage in private, consensual sexual acts.

The Supreme Court Is Still Incoherent About Taxes and Finance, But the Conservatives Seem to Know What They Want

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GW law professor and economist Neil H. Buchanan comments on two of last week’s decisions from the US Supreme Court that at least nominally involved tax law issues. Buchanan explains why the decisions suggest that the justices remain confused about taxes and financial issues more generally and suggests that the lower-profile case from last week may end up having the most important and negative effects going forward.

Justice Kennedy’s Replacement and the Religious Test Awaiting

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Marci A. Hamilton, professor and resident senior fellow in the Program for Research on Religion at the University of Pennsylvania, comments on this week’s news from the US Supreme Court—its decisions upholding President Trump’s travel ban, striking down a California law affecting so-called crisis pregnancy centers, and the news that Justice Anthony Kennedy will be retiring. Hamilton cautions that the cases portend that, President Trump will, in effect, impose a religious test on candidates for Justice Kennedy’s replacement—a requirement expressly prohibited by the Constitution.

Meet our Columnists

Vikram David Amar

Vikram David Amar is the Dean and Iwan Foundation Professor of Law at the University of Illinois College of Law on the Urbana-Champaign campus. Immediately prior to taking the position at Illinois i... more

Neil H. Buchanan

Neil H. Buchanan is an economist and legal scholar and a Professor of Law at The George Washington University. He teaches tax law and tax policy, and he has taught contract law, law and economics, and... more

Sherry F. Colb

Sherry F. Colb is the C.S. Wong Professor of Law at Cornell University. Colb teaches courses in constitutional criminal procedure, evidence, and animal rights. She has published articles in a variet... more

John Dean

John Dean served as Counsel to the President of the United States from July 1970 to April 1973. Before becoming White House counsel at age thirty-one, he was the chief minority counsel to the Judiciar... more

Michael C. Dorf

Michael C. Dorf is the Robert S. Stevens Professor of Law at Cornell University Law School. He has written hundreds of popular essays, dozens of scholarly articles, and six books on constitutional law... more

Joanna L. Grossman

Joanna L. Grossman is the Ellen K. Solender Endowed Chair in Women and Law at SMU Dedman School of Law.  She is an expert in sex discrimination law. Her most recent book,  more

Marci A. Hamilton

MARCI A. HAMILTON is the Robert A. Fox Leadership Program Professor of Practice, and Fox Family Pavilion Resident Senior Fellow in the Program for Research on Religion at the University of Pennsylvani... more

Joseph Margulies

Mr. Margulies is a Professor of Law and Government at Cornell University. He was Counsel of Record in Rasul v. Bush (2004), involving detentions at the Guantánamo Bay Naval Station, and in more

Anita Ramasastry

Anita Ramasastry is the UW Law Foundation Professor of Law at the University of Washington School of Law in Seattle, where she also directs the graduate program on Sustainable International Developmen... more

Lesley Wexler

Lesley Wexler is a Professor of Law at the University of Illinois College of Law. Immediately prior to taking the position at Illinois, Wexler was a Professor of Law at Florida State University, whose... more