University of Florida Levin College of Law professor Neil H. Buchanan laments the current precarious situation of our constitutional democracy. He argues that a constitutional democracy becomes unsustainable and ultimately dies when a party abuses and changes the system to maintain its power, which he observes Republicans are doing now.
Cornell law professor Michael C. Dorf comments on the recent back-and-forth involving the Department of Justice seeking to place a new legal team on the Trump administration’s effort to justify the addition of a citizenship question to the 2020 census. Dorf points out that whoever ends up representing the administration, this attempted withdrawal may shed light on the merits of the case and the lengths to which the President and those who serve him are willing to go for the citizenship question.
NYU law professor Samuel Estreicher comments on the U.S. Supreme Court’s recent decision regarding the inclusion of a citizenship question on the 2020 census questionnaire, arguing that courts should not get involved in determining whether agency action is based on “pretext.” Rather, Estreicher suggests that this particular case was highly unusual and that the Court’s decision should be limited accordingly.
Illinois law dean and professor Vikram David Amar reflects on the decisions the U.S. Supreme Court issued at the end of its 2018–19 term. Amar observes three key trends at the Court: its focus on what constitutes improper government motive, concerns over broad congressional delegation to the executive, and tension over the meaning and theory of stare decisis.
In honor of the 100th anniversary of Illinois’ ratification of the Nineteenth Amendment, Illinois law dean and professor Vikram David Amar reflects on what it means to be free from discrimination in the right to vote. Amar points out the connection between the right against discrimination in voting and the right discrimination in jury service and calls upon us all to consider what full, equal citizenship means.
Cornell law professor Michael C. Dorf comments on a decision the U.S. Supreme Court issued this week invalidating a provision of the Lanham Act that prohibited registration of “immoral” and “scandalous” trademarks. Dorf provides a brief history of the legal protection for profane speech and considers the implications of a more precisely worded statute regulating profanity for trademark registration purposes.
Joanna L. Grossman, SMU Dedman School of Law professor, and Lawrence M. Friedman, a Stanford Law professor, comment on a decision by the U.S. Supreme Court last month upholding a provision of Illinois law that prescribed the disposition of fetal remains. Grossman and Friedman focus their discussion on Justice Clarence Thomas’s concurring opinion and his discussion of eugenics, which they argue is inapt and a distorted telling of history.
Cornell law professor Joseph Margulies addresses comments made in an op-ed by Atlanta District Attorney John Melvin that opponents of restrictive abortion laws are similar to Nazis or supporters of Jim Crow laws. Margulies explains why the comparison is not only intellectually and morally bankrupt, but also shameful, deserving of the most direct condemnation.
Marci A. Hamilton, a professor at the University of Pennsylvania and one of the country’s leading church-state scholars, comments on the decision by the U.S. Supreme Court in American Legion v. American Humanist Association, in which the Court upheld against an Establishment Clause challenge a large cross on public land in Maryland. Hamilton argues that in reaching its conclusion, a majority of the Court ignores the purpose of the Establishment Clause—to create a bulwark against the tyranny that results from the joinder of government and religious power to rule.
UNLV Boyd School of Law professor Leslie C. Griffin discusses the decision by the U.S. Supreme Court earlier this week upholding the display of a World War I memorial cross on public land. Griffin argues that the majority erroneously and unnecessarily complicated the question asked by the Establishment Clause, effectively forgetting that the United States is not a Christian nation and that the Constitution requires the government not to prefer one religion over any other (or none at all.
Illinois law dean and professor Vikram David Amar contrasts Florida’s recent enactment of one of the strictest measures in the country to prohibit state and local entities from becoming “sanctuary” jurisdictions with California’s pro-sanctuary state laws. Amar explains this autonomy of states to enact such different laws with respect to federal laws as a product of the so-called anti-commandeering doctrine the Supreme Court has applied in three major cases over the past quarter century.
Jareb Gleckel, a third-year law student at Cornell Law, comments on the legal and regulatory issues that arise from new food technologies such as “cell-based meat”—which is derived from stem cells to create meat that is identical, at the cellular level, to animal flesh, but does not require the raising and slaughtering of animals. Gleckel explains why both the Food and Drug Administration (FDA) and the Department of Agriculture (USDA) have been asked to exercise jurisdiction over this cell-based meat and argues that, given the position of “Big Ag” that the USDA should regulate cell-based meat, cell-based meat companies therefore have the right to call their products “slaughter-free meat,” “cruelty-free meat,” “antibiotic-free meat,” or even simply “meat.”
University of Florida Levin College of Law professor Neil H. Buchanan considers whether America, having elected Donald Trump, must consequently accept everything he does as “democracy at work.” Buchanan argues that constitutional processes exist not only to protect democracy not only in word but also in spirit, and that extreme consequences of legal action can still threaten the future of democracy.
SMU Dedman School of Law professor Joanna L. Grossman comments on a recent unanimous decision by the U.S. Supreme Court clarifying a procedural point about Title VII and the requirements of employees filing discrimination claims in federal court. As Grossman explains, the Court’s opinion correctly minimizes the importance of a technical requirement of employees and might as a result provide greater protection to employees who suffer from workplace discrimination.
Cornell law professor Sherry F. Colb discusses a question the U.S. Supreme Court will consider next term—whether the U.S. Constitution prohibits a state’s abolition of the insanity defense. Colb points out the various ways in which our current criminal justice system arbitrarily excuses some sources of criminal conduct but not others, and she argues that because of these inconsistencies already inherent in the system, the insanity defense cannot logically be required.
NYU law professor Samuel Estreicher comments on the position in the Department of Justice recently took with respect to the Patient Protection and Affordable Care Act (colloquially known as “Obamacare”), declining to defend any part of the Act in court. Estreicher argues that the DOJ’s position lacks justification and explains the weaknesses of the district court’s reasoning striking down the entire Act.
Cornell law professor Michael C. Dorf considers whether two New York bills—one that requires state and local officials to provide congressional committees with the President’s state and local tax records upon request, and the other that would permit the state to prosecute an individual for conduct that was presidentially pardoned—set a dangerous precedent for state interference with federal action. Dorf argues that these bills provide a permissible form of diagonal checks and balances between the branches of the state and federal government and do not raise constitutional concerns.
SMU Dedman School of Law professor Joanna L. Grossman comments on the recent decision by the Kansas Supreme Court recognizing a state constitutional right to abortion. Grossman explains the historical backdrop of the dispute and describes the reasoning behind the decision of the Kansas Supreme Court.
Illinois law dean Vikram David Amar and professor Jason Mazzone considers whether (and when) a legislature should pass laws that court are likely to invalidate under current precedent. Amar and Mazzone argue that when legislatures enact laws that are at the time unenforceable, the legislatures are not necessarily wasting legislative resources or defying constitutional limits, but sometimes helpfully informing the work of other governmental actors and guide the resolution of constitutional issues
Cornell law professor Michael C. Dorf comments on the US Supreme Court’s recent decision in Franchise Tax Board of California v. Hyatt, in which the conservative majority departed sharply from the brand of originalism that Justice Clarence Thomas (who authored the opinion) and his fellow conservatives purport to favor. Dorf points out the inconsistency of the Court’s conservative bloc criticizing liberal-leaning doctrine based on broad text in rights cases while simultaneously (as here) fashioning right-leaning doctrine from the murky materials of structure and history rather than text.