Illinois law dean and professor Vikram David Amar considers whether the federal government can subject so-called sanctuary jurisdictions to liability for crimes committed by private persons who are in the United States unlawfully, as two Republican-backed legislative proposals seek to do. Specifically, Amar discusses whether such liability constitutes unconstitutional commandeering of states under existing Supreme Court precedent.
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.
Cornell law professor Michael C. Dorf condemns the Supreme Court’s 5–4 decision upholding President Trump’s travel ban but describes a few silver linings that the ruling contains. Specifically, Dorf points out that the majority left open the possibility of future litigation challenging allegedly unlawful border policies, explicitly overruled its decision in Korematsu v. United States (which upheld the internment of Japanese Americans during World War II), denounced President Trump’s anti-Muslim statements, and served as a clear reminder that We The People can and should hold our elected official accountable for enacting or supporting abominable policies.
SMU Dedman School of Law professor Joanna L. Grossman gives a brief overview of the #MeToo movement and describes the great strides our society has made, yet also the challenges it still faces. Specifically, Grossman points out that it is now time for businesses and lawmakers to figure out how best to prevent sexual harassment while protecting women’s career opportunities.
Cornell law professor Sherry F. Colb comments on the recent decision by the US Supreme Court in Byrd v. United States, in which the Court unanimously held that a lawful but contractually unauthorized driver of a rental car has a reasonable expectation of privacy against police searches of the car. Colb explains that the Court’s ruling is significant for more than its face value; it signals a rejection of property-linked formalism and bolsters the ability of the Fourth Amendment to keep certain types of police in check.
Illinois Law dean and professor Vikram David Amar and UC Davis Law emeritus professor Alan E. Brownstein discuss two doctrinal issues raised in the Supreme Court’s majority and concurring opinions in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission. Amar and Brownstein explain how Colorado could have reached the results it reached without disfavoring religion or religious liberty/equality at all, and they point out that the Court’s focus on the motives of the commissioners is unusual given the Court’s prior decisions on the role of invidious motives.
GW Law professor and economist Neil H. Buchanan explains why Social Security is so important, and why Republicans’ claim that it is “going to go broke” is so dishonest. Buchanan briefly describes how Social Security was designed and why, because of that design, it is performing exactly as expected and intended when it was set up.
Cornell law professor Michael C. Dorf argues that the form of originalism typically espoused by scholars—in which constitutional interpretation aims to recover the original public meaning of the text—often ends up being abused in practice. Judges and justices borrow the respectability of public meaning originalism to justify a generally discredited form of originalism that seeks answers in the framers’ and ratifiers’ intentions and expectations. To illustrate this point, Dorf points to Justice Gorsuch’s recent dissent in Sveen v. Melin, which looks not to the text of the Contracts Clause but to what Justice Gorsuch inferred the framers and ratifiers intended and expected.
Marci A. Hamilton— one of the country’s leading church-state scholars and the Fox Professor of Practice and Fox Family Pavilion Resident Senior Fellow in the Program for Research on Religion in the Fox Leadership Program at the University of Pennsylvania—comments on the recent decision by the US Supreme Court in Masterpiece Cakeshop v. Colorado Civil Rights Commission. Hamilton explains the scope and limitations of the Court’s decision and notes the significance of its narrow holding in that case.
Illinois Law dean and professor Vikram David Amar comments on the lawsuit filed by the Trump administration against California over its so-called sanctuary policies. Amar explains why the federal government is likely to prevail on one claim, to lose on another claim, and to lose in part on the third claim. Amar laments that both sides seem to assert extreme positions that are not entirely tenable.
Cornell University law professor Michael C. Dorf comments on the US Supreme Court’s ruling in Upper Skagit Indian Tribe v. Lundgren, but more specifically the implications of Chief Justice Roberts’s concurrence in that case. Dorf argues that the Chief Justice’s concurrence, taken to its logical conclusion, broadly undermines the basis for much of the Court’s case law involving the sovereign immunity of US states.
Guest columnist and former US Congressman Brad Miller explains why Congress may not intrude on an open criminal investigation, especially not to help political allies who are likely targets. In support, Miller points not only to traditional democratic norms, but also to unequivocal jurisprudence on the limits of congressional oversight.
Cornell University law professor Sherry F. Colb explores the reasons behind some people’s refusal to refer to trans men as men and trans women as women. Colb describes some of the concrete harms caused by such refusal, such as policies sending trans women to prisons for the wrong gender—a policy Colb argues violates the Eighth Amendment under the Supreme Court’s jurisprudence.
Cornell University law professor Joe Margulies comments on the confirmation hearing of Gina Haspel for director of the Central Intelligence Agency. Margulies initially expressed reservations about Haspel, but he explains her strengths and weaknesses and draws the important distinction between someone who is good for the Agency and someone who is good for the country.
Cornell University law professor Sherry F. Colb examines two (real, but slightly altered) conversations in order to explore the thoughts and feelings that might affect the weight we give to principles that support our positions, while disregarding the same principles when they run contrary to our positions. Colb describes the interrelatedness of conversations that arise regarding rape, racism, and free speech, specifically in the context of college fraternities, but applicable to many other situations.
Illinois Law dean and professor Vikram David Amar relates insights on campus free speech principles that came up during a recent discussion with renowned constitutional commentators Erwin Chemerinsky and Geof Stone. Among the insights are some possible explanations for why many college students today seem opposed to allowing offensive speech on campus, the different perspectives on the proper role of university officials regarding controversial guest speakers, and the question of when the costs of providing security for controversial speaker events justifies the cancellation or termination of the event.
Cornell University law professor Michael C. Dorf comments on a recent Ninth Circuit decision rejecting an effort by PETA to bring a copyright lawsuit on behalf of Naruto, a crested macaque. Dorf points out that while the result in that case is unsurprising, the court’s reasoning raises important questions about the role of lawsuits and law more generally in furthering the interests of nonhuman animals.
SMU Dedman School of Law professor Joanna L. Grossman describes the last ruling by the late Judge Stephen Reinhardt, in which Reinhardt, writing for the Ninth Circuit en banc, reversed an interpretation of the Equal Pay Act that allowed employeers to justify paying female employees less than their male counterparts based on salary history. Grossman explains why the ruling is a correct interpretation of the Equal Pay Act and notes that the decision underscores Judge Reinhardt’s reputation as a staunch defender of equality and justice.
Illinois Law dean and professor Vikram David Amar comments on Tim Draper’s proposal to divide California into three separate state. Amar describes what the proposal would do and provides three levels of hurdles that will (and Amar argues should) make the proposal a difficult sell, particularly among rational Democrats, who make up the majority of California voters.
Cornell University law professor Michael C. Dorf comments on an exchange during the confirmation hearing of Wendy Vitter, whom President Trump has nominated for a federal district court judgeship, in which Vitter declined to answer whether she thought Brown v. Board of Education was rightly decided. Dorf points out that Vitter’s refusal to answer that question may have been an attempt to avoid further scrutiny about her views about abortion but also served to inadvertently acknowledge what conservatives routinely deny—that a judge’s “personal, religious, and political” views necessarily interact with the legal materials.