Analysis and Commentary on Courts and Procedure
Bad and Worse Ways for the Government to Lose the SEC SCOTUS Case

Cornell Law professor Michael C. Dorf comments on the pending U.S. Supreme Court case SEC v. Jarkesy, which questions the constitutionality of administrative law judges (ALJs) in the SEC and their role in enforcing securities laws. While Professor Dorf believes the Court should reject all three constitutional challenges presented in the case, he suggests that if the Court does rule against the government, the least disruptive outcome would be based on the removal issue rather than the Seventh Amendment or nondelegation claims.

A Red Warning for Justice for Survivors

Kathryn Robb, executive director of Child USAdvocacy, argues that the attendance of Louisiana Supreme Court Justices at the Red Mass, a religious event seeking divine guidance in decision-making, presents a conflict of interest and blurs the lines between church and state, especially in light of pending cases involving the Church. Ms. Robb highlights the historical and symbolic significance of the color red, used in the Red Mass, as a universal signal for danger and warning, suggesting that this tradition, though time-worn, compromises the integrity of the judiciary and the separation of powers in government.

Donald Trump’s Legal Strategy Draws its Inspiration from the 1969 Trial of the Chicago Seven

Amherst professor Austin Sarat argues that former President Donald Trump’s approach in his legal battles mirrors the tactics used by the defendants in the Chicago Seven trial, aiming to turn his trials into political theater and mock the legal process. Professor Sarat argues that Trump’s behavior, including his motion to televise proceedings and accusations against the legal system, are his attempt to subvert judicial proceedings and portray himself as a victim of political persecution, similar to the disruptive and publicity-focused strategies of the Chicago Seven.

Could Congress Solve the Supreme Court’s Disqualification Problem?

Cornell Law professor Michael C. Dorf argues that the Supreme Court’s new Code of Conduct, despite being a step towards addressing ethical concerns, is insufficient due to its lack of enforcement mechanisms and the Court’s history of questionable conduct. Professor Dorf suggests that, despite Justice Alito’s assertion to the contrary, Congress has the authority to impose stricter ethical rules on the Supreme Court and could even explore innovative solutions like a “pinch-hitter” system using retired Justices or federal appeals court judges to address recusal challenges.

Louisiana Judge Uses a Fog of Legalisms to Prevent Consideration of Clemency for Death Row Inmates

Amherst professor Austin Sarat comments on a decision by a federal district court in Louisiana denying a preliminary injunction in a case involving death row inmates seeking clemency. Professor Sarat criticizes the court’s narrow interpretation of the governor’s directive regarding clemency hearings, arguing that it exemplifies a legalistic approach that disregards the broader context and intention of the governor’s actions.

Four Key Takeaways From Trump’s Civil Fraud Testimony Monday

Former federal prosecutor Dennis Aftergut argues that former President Trump’s courtroom behavior in the civil fraud case in New York, marked by attacks on judicial figures and the legal process, indicates his anticipation of a lost case and a strategy focused on delay through appeals and political posturing to his base. Furthermore, Mr. Aftergut suggests that Trump’s tactics on the stand, which include deflecting blame and refusing to answer questions directly, aim to serve his political narrative rather than address the substantive legal claims against him.

Dreading the Start of the Supreme Court Term

Amherst professor Austin Sarat expresses deep concern about the current U.S. Supreme Court’s potential effects on the country, arguing that the Court appears to be moving in a decisively conservative direction on issues like religious freedom, abortion, and affirmative action. Professor Sarat also raises questions about the ethics and legitimacy of the Court, citing public approval ratings and noting upcoming cases on racial gerrymandering, gun regulation, and administrative authority that could have significant societal consequences.

Partisan Gerrymandering Case Under the New Mexico Constitution Nears Critical Point

UC Davis Law professor Vikram David Amar discusses the ongoing legal battle over congressional redistricting in New Mexico, where Republicans have filed a lawsuit claiming that new district maps favor Democrats and violate the state constitution. Professor Amar emphasizes the importance for the New Mexico state courts to clearly base their rulings on the state constitution rather than the federal Constitution, and to justify their decisions more explicitly so as to demonstrate greater legitimacy.

The Flawed Premise at the Core of the Threats to Impeach Wisconsin Supreme Court Justice Janet Protasiewicz

UC Davis Law professor Vikram David Amar discusses the controversy surrounding the potential impeachment of new Wisconsin Supreme Court Justice Janet Protasiewicz for having expressed her views on gerrymandering during her campaign. Professor Amar argues that sharing one’s views on specific legal topics should not be grounds for impeachment, as it helps the public understand a candidate’s legal philosophy and does not necessarily mean the judge’s mind is fixed on an issue.

Personal Jurisdiction Makes Strange Bedfellows: An Assessment of the Supreme Court’s Decision in Mallory v. Norfolk Southern Railway Co.

Touro University, Jacob D. Fuchsberg Law Center, professors Rodger D. Citron and Laura A. Dooley discuss the U.S. Supreme Court’s unexpectedly divided decision in Mallory v. Norfolk Southern Railway Co. case, which addressed whether a corporation can be sued in a state where it has registered to do business but is not a citizen. Professors Citron and Dooley argue that the case is notable for the alignment of ideologically diverse justices and its potential to significantly alter the landscape regarding where plaintiffs can sue corporations, shedding light on the current Court’s approach to originalism and federalism in the context of personal jurisdiction.

The Answer to the Judge’s New Question in Mark Meadows’s Removal of his Georgia Indictment

Former federal prosecutor Dennis Aftergut argues that in deciding whether Mark Meadows’s case should be tried in federal court, the judge should apply a “totality of the circumstances” test—which would result in the case being remanded to state court. Mr. Aftergut points out that this approach would weigh all of Meadows’s actions, rather than focusing on a single official act, thereby accommodating competing legal and social values.

The Court’s Pause: A Necessary Change for Victims

Kathryn Robb, executive director of CHILD USAdvocacy, critically observes that Chapter 11 of the U.S. Bankruptcy Code has been misused by entities like Purdue Pharma, Boy Scouts of America, and the Catholic Church to shield themselves from liability, particularly in cases involving the opioid epidemic and child sexual abuse. Ms. Robb calls for Congress and the U.S. Supreme Court to take immediate action to rectify these abuses, with the recent delay in the Purdue Pharma settlement presenting an opportunity for Congress to pass legislative amendments that serve justice and protect victims.

Justice Alito is Wrong: Congress Can and Does Regulate the Supreme Court

Cornell Law professor Michael C. Dorf responds to a recent Wall Street Journal “puff piece” on U.S. Supreme Court Justice Samuel Alito, arguing that, contrary to the op-ed authors’ assertion, Justice Alito’s purported commitment to textualism is disingenuous and that he finds ways (atextually, if needed) to vote consistently for ideologically conservative outcomes. Professor Dorf refutes Justice Alito’s claim that Congress lacks the authority to impose ethical standards on the Supreme Court, pointing out Congress’s historical role in shaping the Court and the existing ethics regulations that apply to the Justices.

Some (Very) Preliminary Musings on the Loper Bright Case Next Term Involving the So-Called Chevron Deference Doctrine

UC Davis Law professor Vikram David Amar comments on the Loper Bright case the U.S. Supreme Court will be hearing next term, which provides the opportunity for the Court to revisit (and potentially eliminate) the Chevron deference doctrine. Professor Amar points out and analyzes some of the constitutional issues raised by the doctrine.

Kavanaugh Is the Latest Justice to Try Shoring up the Supreme Court by Trying to ‘Put Lipstick on a Pig’

Amherst professor Austin Sarat comments on recent comments by U.S. Supreme Court Justice Brett Kavanaugh describing the Justices as respectful and restrained in their criticism of each other, despite written evidence in their opinions to the contrary. Professor Sarat points out the mocking and sometimes disparaging language that some Justices have used in discussing opposing views in the contentious cases of late.

You, Me, “Purely Legal” Issues on Appeal, and Dupree

Touro Law professor Laura Dooley comments on the U.S. Supreme Court’s decision in Dupree v. Younger, which held that there is no procedural requirement that a litigant who lost a “purely legal” issue at the summary judgment stage file a post-trial Rule 50 motion to preserve that issue for appeal. Professor Dooley points out that while the procedural issue raised in Dupree is ostensibly technical, it implicates numerous policy and strategy matters at the core of civil litigation in federal courts.

The Coinbase Arbitration Decision: Sensible Procedural Correction or Court Invention?

Arbitrator and mediator Barry Winograd comments on the recent decision by the U.S. Supreme Court in Coinbase v. Bielski, in which the Court held that a litigation stay is required when an interlocutory appeal permitted by Section 16(a) of the Federal Arbitration Act is taken from a federal district court order denying a motion to compel arbitration. Mr. Winograd summarizes the Coinbase decision, shares several thoughts about its reasoning, and considers the decision’s potential effects on arbitration practice.

Judge Doughty’s Aberrant First Amendment Decision Sows Distrust in the Law

Former federal prosecutor Dennis Aftergut highlights two points about the federal district court’s July 4 decision blocking the Biden administration from communicating with social media companies—points which, Mr. Aftergut argues, underscore the decision’s risk of sowing great mistrust in law. Mr. Aftergut contrasts the apparent “judge shopping” that put the case before a Trump-appointed judge with the even-handed approach of Special Counsel Jack Smith, and he points out the opinion’s glaring omission of an especially relevant precedent.

Huzzah for the Court in Moore v. Harper

Illinois Law dean Vikram David Amar comments on the U.S. Supreme Court’s decision in Moore v. Harper, in which the Court forcefully repudiated the essence of the so-called “Independent State Legislature” (ISL) theory. Dean Amar describes the apparent evolution of several Justices’ views on ISL theory and explains how that evolution led to the Court’s sound rejection of the theory.

The Not-so-Subtle Vices of a None-too-Passive Supreme Court

Cornell Law professor Michael C. Dorf contrasts the present Supreme Court with the one Yale Law Professor Alexander Bickel praised in a Harvard Law Review article in 1961. Unlike the Court Bickel described, which manipulated its docket to strategically avoid difficult and divisive issues, Professor Dorf argues that the present Court manipulates its docket to decide those issues—and often without full briefing or oral argument.

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 both Osgoode Hall... 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