Cornell Law professor Michael C. Dorf explains how the U.S. Supreme Court’s recent seemingly inconsistent decisions in Ramirez v. Collier and Austin v. U.S. Navy Seals 1–26can be reconciled by examining the nature of the government interests in each case. Professor Dorf points out that while the Court has held judicial deference to prison officials’ expert judgment on security questions impermissible under RLUIPA, it has not (and did not in the Navy Seals case) decided whether deference to the military is compatible with RFRA and whether, if not, RFRA is unconstitutional.
SMU Dedman School of Law professor Joanna L. Grossman describes the American child welfare system and argues that Texas Governor Greg Abbott’s attempt to weaponize state child abuse law against trans children and their parents is grossly unconstitutional. Professor Grossman points out that the child welfare system gives parents broad discretion to make medical decisions for their children, and a state cannot simply decide that a particular type of medical treatment constitutes child abuse because it is politically opposed to it.
Amherst professor Austin Sarat describes the current state of capital punishment in the United States, in particular, the 27 states that authorize death sentences but have not actually carried out an execution in the last five or ten years. Professor Sarat argues that this limbo for death row inmates causes unnecessary suffering and reflects an appropriate reluctance to kill in the name of the state.
Amherst professor Austin Sarat describes how politicians have misused the term “lynching” for their own political purposes, thereby threatening to dilute its meaning. Professor Sarat praises President Biden for signing into law the Emmett Till Antilynching Act and calls upon the president and Attorney General Merrick Garland to use its historic passage to put the full weight of the federal government behind efforts to stem the epidemic of hate crimes plaguing this country.
UF Levin College of Law professor and economist Neil H. Buchanan argues that the label of “cancel culture” is a vacant concept, but because of its now widespread use, we should overuse the phrase so as to dilute and mock it. Professor Buchanan points out that, despite current popular opinion, the right to speak is not the same as a right to have other people listen.
In light of the recent Supreme Court confirmation hearing of Judge Ketanji Brown Jackson, Cornell Law professor Michael C. Dorf explains why judges across the ideological spectrum embrace the judicial philosophy of originalism. Professor Dorf points out that today’s version of originalism leaves judges and justices substantial room to make judgments based on their values.
Amherst professor Austin Sarat explains how the U.S. Supreme Court’s recent decision in Ramirez v. Collier demonstrates how the conservative Justices prioritize religious freedom over all other values, even speedy executions. Professor Sarat points out that the decision is just the latest waystation on the Court’s determined journey to put religion at the center of American life.
UF Levin College of Law professor Neil H. Buchanan responds to a recent editorial in The New York Times lamenting the alleged erosion of the American right to speak one’s mind and voice one’s opinions in public without fear of being shamed or shunned. Professor Buchanan explains why the editorial board erroneously conflates the right to free speech with an expectation of speech without consequences.
Cornell Law professor Sherry F. Colb explores the relationship between the abortion right and the right to physician assistance in dying, neither of which she predicts will enjoy constitutional protection under the religious extremist majority that now rules the Supreme Court. Professor Colb points out that religious extremists oppose both rights based on a view that God alone decides when we live and die.
In this second of a two-part series of columns on a Seventeenth Amendment case currently before the Oklahoma Supreme Court, Illinois Law dean Vikram David Amar and professor Jason Mazzone consider whether Senator Jim Inhofe’s promise to resign is enforceable and whether there anything else Inhofe (and the state) could do to vindicate his (and its) wishes.
Amherst professor Austin Sarat describes how courts in Europe, when faced with the question whether to extradite an escaped convict to the United States, have expressed greater concern about the conditions of American prisons than do American courts or legislatures. Professor Sarat argues that it is time for American courts to redress prison conditions and ensure that when we send someone to prison, we respect and protect their constitutional rights.
In this first of a series of columns, Illinois Law dean Vikram David Amar and professor Jason Mazzone identify and analyze some of the Seventeenth Amendment issues presented in a case pending before the Oklahoma Supreme Court. Dean Amar and Professor Mazzone consider whether a state can hold a special election while the Senate seat is still occupied, and whether the possibility of a substantial lag between a special election and actual replacement matters.
Cornell Law professor Michael C. Dorf comments on two cases the U.S. Supreme Court recently decided that involve the “state secrets privilege.” Professor Dorf argues that the cases demonstrate that the executive branch (regardless of whether the president is a Republican or a Democrat) will go as far as the courts allow with the public secrets privilege, so it falls to Congress to rein it in.
In this sixth of a series of columns, Illinois Law dean Vikram David Amar offers a few concluding thoughts on the invocation of the Independent State Legislature (ISL) theory in cases in North Carolina and Pennsylvania. Dean Amar looks both backward at last week’s decisions by the U.S. Supreme Court and forward to other settings in which ISL theory will be an issue.
Amherst professor Austin Sarat argues that the Texas Supreme Court has consistently advanced a “mean-spirited” version of federalism that is the antithesis of what the Founders wanted. Professor Sarat points out that the mean-spiritedness was on display when the Texas legislature enacted S.B. 8, which does not allow legal abortions in cases of rape or incest, and when the state supreme court upheld the enforcement of that law.
Cornell Law professor Sherry F. Colb comments on a case the U.S. Supreme Court recently agreed to review that presents the question whether the application of a state anti-discrimination law to a web designer who wishes to exclude same-sex couples from her services violates the Free Speech Clause of the First Amendment. Professor Colb predicts that the Court is likely to hold that the law as applied to the web designer does violate her free speech right—continuing a pattern of almost exclusively granting homophobes special First Amendment exemptions from anti-discrimination law.
In this fifth of a series of columns on the so-called Independent State Legislature (ISL) theory of Articles I and II of the federal Constitution, Illinois Law dean Vikram David Amar argues that the U.S. Supreme Court should grant review in a case that cleanly presents ISL theory and soundly reject it, once and for all. Dean Amar calls upon the majority of the Court that rejects ISL theory to explain its sound reasoning for rejecting it, noting that when one side lays out its case in public writings and the other (much stronger) side does not, the public is not well served.
In this fourth of a series of columns, Illinois Law dean Vikram David Amar continues his discussion of the so-called Independent State Legislature (ISL) theory regarding federal congressional and presidential selection processes. Dean Amar responds to arguments the North Carolina Applicants raise in their Reply filed with the U.S. Supreme Court last week.
Amherst professor Austin Sarat comments on the ongoing federal trial in Oklahoma challenging that state’s lethal injection protocol. Professor Sarat describes Oklahoma’s history with the death penalty and explains why this particular case is so noteworthy.
In this third of a series of columns, Illinois Law dean Vikram David Amar explains why the proponents of the so-called Independent State Legislature (ISL) theory of Articles I and II of the U.S. Constitution inadequately address arguments and cases cutting against them. Dean Amar points out that a fundamental flaw of ISL theory is its failure to articulate any federal interest or norm, grounded in originalist understandings, structural expectations, or binding Supreme Court cases, concerning any specific state distribution of internal governmental powers.