Analysis and Commentary on Courts and Procedure
Is House Speaker Mike Johnson’s Proposal to Eliminate Federal Judgeships Constitutional?

Cornell Law professor Michael C. Dorf examines recent calls by President Donald Trump, Speaker Mike Johnson, and their allies in Congress to remove or sideline federal judges who have blocked Trump administration policies, either through impeachment or by eliminating the courts themselves. Professor Dorf argues that such tactics are constitutionally dubious and dangerously undermine judicial independence, warning that the real threat to the republic comes not from the judges, but from efforts to evade legal checks on presidential power.

Bankruptcy Court Listens to Survivors of Abuse

UNLV Boyd School of Law professor Leslie C. Griffin discusses a bankruptcy court decision in In re: The Roman Catholic Bishop of Sacramento, in which Judge Christopher Klein ruled that survivors of clergy sexual abuse could address the court despite objections from the church’s insurers. Professor Griffin argues that while bankruptcy is often used to delay and minimize liability for abuse claims, Judge Klein’s ruling affirms that all courts can and should provide survivors with a platform to be heard, acknowledging the profound human and psychological impact of their experiences.

Professor Alan Dershowitz’s Ill-Considered Defense of the Quid Pro Quo in the Eric Adams Prosecution

Criminal defense attorney Jon May critiques Professor Alan Dershowitz’s defense of the Department of Justice’s decision to dismiss criminal charges against New York Mayor Eric Adams and argues that the deal is unlike typical plea bargains in federal criminal cases. Mr. May contends that Adams’s agreement, which involves no criminal penalty, dangerously expands the scope of prosecutorial discretion and could lead to a system where defendants barter extrajudicial favors to avoid prosecution, undermining principles of justice.

Primer for Non-Lawyers (And Non-Litigators) on the Nature and Process of “Preliminary” Injunctive Relief in Federal Court

UC Davis Law professor Vikram David Amar discusses the surge in federal lawsuits challenging the new Trump administration’s extensive assertions of executive power. Emphasizing the critical role of the judiciary in these times, Professor Amar explains the significance of court rulings, particularly preliminary injunctions, as temporarily halting executive actions to prevent irreparable harm while the legal merits are fully adjudicated, and he highlights the immense pressure on judges to navigate these complex and politically charged constitutional issues.

Chief Justice Roberts’s Annual Report Foreshadows a Future of Gaslighting

Attorney Lauren Stiller Rikleen and Amherst professor Austin Sarat analyze Supreme Court Chief Justice John Roberts’s 2024 Year-End Report and examine his pattern of using historical references in his annual reports from 2021 to 2024. Ms. Rikleen and Professor Sarat argue that Roberts uses selective historical examples and appeals to judicial independence as rhetorical devices to deflect attention from ethical concerns within the Supreme Court, particularly regarding Justice Clarence Thomas’s alleged ethical lapses and Roberts’s own refusal to enforce stronger ethical standards for the Court.

Does the Rule of Law Mean that Only Courts Can Rule? The Bucks County, Pennsylvania Episode Tees Up the Question

UC Davis Law professor Vikram David Amar and Illinois Law professor Jason Mazzone analyze a recent Pennsylvania Supreme Court decision ordering counties not to count undated/misdated mail-in ballots for the November 2024 election, specifically examining the broader implications of courts claiming exclusive authority to interpret constitutionality. Professors Amar and Mazzone argue that the court’s position that only judges can determine constitutional matters is problematic, as executive officials throughout American history have demonstrated the capacity to make sound constitutional judgments, and a decentralized system of constitutional review by multiple government actors can better protect individual rights.

Why Is an Election Law Challenge (Brought by Republicans Against Governor Whitmer Concerning Voter Registration Centers) That Is Grounded in Michigan State Law Proceeding in Federal Court—and What Are the Lawyers Doing There?

UC Davis Law professor Vikram David Amar and Illinois Law professor Jason Mazzone analyze a recent election-related lawsuit filed in Michigan federal court, critiquing the legal arguments and the court’s handling of the case in the context of federal jurisdiction principles. Professors Amar and Mazzone argue that the lawsuit clearly lacks federal subject-matter jurisdiction and should have been promptly dismissed, highlighting this case as an example of poor lawyering and judicial oversight that is unnecessarily complicating the legal landscape ahead of the upcoming election.

When an Election Case Reaches SCOTUS, Which Side Will be Playing Defense?

Cornell Law professor Michael C. Dorf discusses the current Supreme Court term and its potential implications for the 2024 presidential election. Professor Dorf argues that while the current docket seems relatively quiet, the Court’s history of partisan decisions favoring Republicans, combined with the possibility of election-related cases being added later, raises concerns about how the Court might handle potential challenges to the 2024 election results, particularly if Trump loses and uses his loyalists in state legislatures or other organs of government to declare him the winner anyway.

Supreme Court Agrees to Hear a Case That Could Expand the Use of DNA Evidence in Capital Cases

Amherst professor Austin Sarat discusses the Supreme Court’s decision to hear a case that could expand the use of DNA evidence in capital punishment cases, focusing on Ruben Gutierrez’s appeal in Texas. Professor Sarat argues that the Court should allow Gutierrez to challenge Texas’s restrictions on post-conviction DNA testing, asserting that such limitations in death penalty cases across the country hinder the pursuit of justice and should be reconsidered.

The Chief Justice Roberts Who Stood Up Last Term Was More Interested in Advancing a Conservative Legal Agenda than Promoting Judicial Statesmanship: Part Two

In this two-part series of columns, Touro University, Jacob D. Fuchsberg Law Center professor Rodger D. Citron examines Chief Justice John Roberts’s leadership of the Supreme Court over multiple terms, focusing on his apparent dual objectives of balancing political attunement and advancing conservative ideology. In this second part, Professor Citron argues that Roberts re-established his control over the Court by successfully weakening the administrative state and expanding presidential immunity while simultaneously avoiding controversial decisions on gun rights and reproductive issues, ultimately demonstrating his ability to push a conservative agenda without incurring significant political backlash.

The Chief Justice Roberts Who Stood Up Last Term Was More Interested in Advancing a Conservative Legal Agenda than Promoting Judicial Statesmanship: Part One

In this two-part series of columns, Touro University, Jacob D. Fuchsberg Law Center professor Rodger D. Citron examines Chief Justice John Roberts’s leadership of the Supreme Court over multiple terms, focusing on his apparent dual objectives of balancing political attunement and advancing conservative ideology. In this first part, Professor Citron highlights Roberts’s judicial statesmanship in the 2019-20 term, particularly in cases involving Trump administration subpoenas, and contrasts this with the 2021-22 term, where the Court’s conservative shift raised questions about Roberts' control, especially following the overturning of Roe v. Wade.

Judge States as They Do, Not as They Say: Why the Eighth Circuit’s Invalidation of Missouri’s “Second Amendment Preservation Act,” While Possibly Correct as to Result, Was Premised on Inadequate Reasoning

UC Davis Law professor Vikram David Amar analyzes a recent Eighth Circuit ruling on Missouri’s Second Amendment Preservation Act (SAPA), which seeks to protect gun rights by limiting state cooperation with federal firearm laws. Professor Amar argues that while parts of SAPA are unconstitutional, the Eighth Circuit’s reasoning is flawed, particularly in its assertion that a state cannot withdraw enforcement support for federal laws based on its belief that those laws are unconstitutional, and suggests that the case may warrant Supreme Court review.

Deciding When to Hold Trump’s Sentencing Hearing Is Not Just a Legal Question

Amherst professor Austin Sarat discusses the upcoming sentencing of Donald Trump in New York and the challenges faced by Judge Juan Merchan in deciding when to hold the sentencing hearing and what punishment to impose. Professor Sarat argues that Judge Merchan’s decision requires both legal acumen and practical wisdom, as it could have significant political ramifications for the 2024 presidential election, regardless of whether the sentencing is delayed or proceeds as scheduled.

Now Is the Time for Death Penalty Abolitionists to Join the Effort to End Life Without Parole Sentences

Amherst professor Austin Sarat discusses the use of life without parole (LWOP) sentences in the United States, examining upcoming state supreme court cases challenging these sentences and the historical role of death penalty abolitionists in promoting LWOP as an alternative to capital punishment. Professor Sarat argues that death penalty abolitionists should now reconsider their support for LWOP, recognizing it as another form of “death penalty” and joining efforts to scale back its use, especially given its disproportionate impact on young offenders and people of color.

Americans Should Not Be Afraid to Reform the Supreme Court

Amherst professor Austin Sarat discusses recent proposals for Supreme Court reform in the United States, including term limits for Justices, ethics rules, and jurisdiction stripping. Professor Sarat argues that such reforms are justified and necessary in light of the Court’s current conservative majority and controversial decisions, emphasizing that court reform has historical precedent and should not be feared despite potential challenges.

Is the Eighth Circuit Ruling the End of the Road for Student Debt Forgiveness?

Cornell Law professor Michael C. Dorf discusses recent court decisions blocking President Biden’s student debt forgiveness programs, including the Supreme Court’s invalidation of his initial plan and the Eighth Circuit’s ruling against the subsequent SAVE plan. Professor Dorf argues that these decisions reflect a broader assault on administrative power by Republican-appointed judges, leveraging doctrines like the major questions doctrine to hamstring effective regulation, and suggests that the Republican-packed judiciary, rather than the Biden administration, is the true culprit behind the failure of student debt relief efforts.

Trump v. United States is But One Illustration of the Supreme Court’s Ongoing Yet Problematic Commitment to Government Immunity for Violations of Law

UC Davis Law professor Vikram David Amar and professor emeritus Alan E. Brownstein discuss the U.S. Supreme Court’s recent decision in Trump v. United States regarding presidential immunity, drawing parallels to the Court’s interpretation of state sovereign immunity under the Eleventh Amendment. Professors Amar and Brownstein argue that in both cases, the Court has ignored the original public meaning of the Constitution, compromising the rule of law by allowing government officials to escape accountability for unlawful acts, while noting that the vagueness in the Trump decision may leave room for future refinement of the immunity framework.

Joe Biden’s Court Reform Journey Still Stops Short of Court Packing

Amherst professor Austin Sarat discusses President Joe Biden’s recent proposals for Supreme Court reform, including a constitutional amendment to reverse the decision on presidential immunity, term limits for Justices, and a binding ethics code. Professor Sarat notes that while these proposals mark a significant shift in Biden’s stance on Court reform, they stop short of embracing Court packing, which Professor Sarat suggests may be the most far-reaching response to the perceived crisis in the Supreme Court and the threat its conservative majority poses to democracy and the rule of law.

Judge Cannon’s Ruling Dismissing the Trump Case Suffers From Constitutional Myopia in Interpreting the Appointments Clause (and Appropriations Clause): Part Two in a Two-Part Series

UC Davis Law professor Vikram David Amar analyzes Judge Aileen Cannon’s dismissal of the improper-documents-handling indictment against former President Donald Trump, focusing on Judge Cannon’s interpretation of the Appointments Clause and its implications for Special Counsel Jack Smith’s appointment. In this second in a series of columns, Professor Amar argues that Judge Cannon’s ruling is flawed because it fails to consider the broader constitutional context and ignores that the current arrangement with Smith does not meaningfully differ from alternative setups that would be unquestionably constitutional, thus suggesting a need for a more flexible interpretation of the relevant statutes.

Judge Cannon’s Ruling Dismissing the Trump Case Suffers From Constitutional Myopia With Respect to the Proper Role of a District Court Judge: Part One in a Two-Part Series

UC Davis Law professor Vikram David Amar analyzes Judge Aileen Cannon’s decision to dismiss the Mar-a-Lago document handling indictment against former President Donald Trump, focusing on the judge’s reasoning regarding Special Counsel Jack Smith’s appointment. Professor Amar argues that Judge Cannon’s ruling is flawed due to her failure to respect the proper role of a district court judge in relation to higher court precedents, particularly the Supreme Court’s Nixon tapes case, and her misunderstanding of the larger constitutional context surrounding special counsel appointments.

Meet our Columnists
Vikram David Amar
Vikram David Amar

Vikram David Amar is a Distinguished Professor of Law at UC Davis School of Law and a Professor... more

Neil H. Buchanan
Neil H. Buchanan

Neil H. Buchanan, an economist and legal scholar, is a visiting professor at the University of... more

John Dean
John Dean

John Dean served as Counsel to the President of the United States from July 1970 to April 1973.... more

Michael C. Dorf
Michael C. Dorf

Michael C. Dorf is the Robert S. Stevens Professor of Law at Cornell University Law School. He... more

Samuel Estreicher
Samuel Estreicher

Samuel Estreicher is Dwight D. Opperman Professor of Law and Director of the Center of Labor and... more

Leslie C. Griffin
Leslie C. Griffin

Dr. Leslie C. Griffin is the William S. Boyd Professor of Law at the University of Nevada, Las... more

Joanna L. Grossman
Joanna L. Grossman

Joanna L. Grossman is the Ellen K. Solender Endowed Chair in Women and Law at SMU Dedman School... more

Marci A. Hamilton
Marci A. Hamilton

Professor Marci A. Hamilton is a Professor of Practice in Political Science at the University of... more

Joseph Margulies
Joseph Margulies

Mr. Margulies is a Professor of Government at Cornell University. He was Counsel of Record in... more

Austin Sarat
Austin Sarat

Austin Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science at... more

Laurence H. Tribe
Laurence H. Tribe

Laurence H. Tribe is the Carl M. Loeb University Professor Emeritus at Harvard University and... more

Lesley Wexler
Lesley Wexler

Lesley Wexler is a Professor of Law at the University of Illinois College of Law. Immediately... more