The Implication of the Dobbs Decision for Casey

Middle Tennessee State University professor John R. Vile explains what the Supreme Court’s decision this term in Dobbs v. Jackson Women’s Health Organization implies about the Court’s view of its prior decision in Planned Parenthood v. Casey. Professor Vile argues that it was unlikely a doctrine such as substantive due process could ever adequately resolve such a contentious issue as abortion and predicts that rigid state legislation that makes no exception for cases of rape, incest, and the life of the mother will face similar backlash.

Impregnable

Cornell Law professor Sherry F. Colb explores the history and understanding of the word “impregnable,” particularly the gendered nature of the word and what it says about our perception of pregnancy. Professor Colb suggests ways in which our society could make women “impregnable” and thus more equal to men, who are quite literally impregnable.

Death, Dignity, and the Ethics of Organ Donation in the Shadow of Execution

Amherst professor Austin Sarat comments on the controversy over whether death-row inmates should be permitted to donate their organs before or after their executions. Professor Sarat argues that to prohibit inmates from donating their organs is a further mark of their subjugation and that for many, organ donation is a way of giving life even as the state takes theirs.

Viking River Cruises Muddies the Waters

Illinois Law professor Matthew Finkin comments on the Supreme Court’s recent decision in Viking River Cruises v. Moriana, pointing out several issues in the Court’s reasoning and conclusion as to the arbitration questions raised in that case. Professor Finkin argues that the decision incites three lines of inquiry—historical, empirical, and doctrinal—and then begs them, ultimately leaving more questions than it resolves.

Private Transitional Justice—The Case of the Slave Daguerreotypes Continued

Illinois Law professor Lesley M. Wexler comments on a decision by the Massachusetts Supreme Judicial Court affirming Harvard’s ownership over slave daguerreotypes, but allowing causes of action for negligent infliction of emotional distress and for reckless inflection of emotional distress to move forward. Professor Wexler explains how the majority opinion and each of the two concurrences—one of which invites future plaintiffs to submit novel claims to seek ownership and the other which proposes a cause of action for descendants of slaves to receive ownership of wrongfully attained property—might fit within transitional justice.

To Be or Not to Be a Mother: A Timeless Question with New Urgency

In this second of a series of columns on the Supreme Court’s decision that eliminated the constitutional right to abortion, SMU Dedman School of Law professor Joanna L. Grossman and Stanford Law professor Lawrence M. Friedman describe how abortion law arose alongside the eugenics movement. As Professor Grossman and Friedman explain, early abortion restrictions were, in part, an effort to encourage the “right” people to have babies (positive eugenics), used in conjunction with negative eugenics, which involved forced sterilization of people deemed “unfit.”

Dobbs Double-Cross: How Justice Alito Misused Pro-Choice Scholars’ Work

Cornell Law professor Michael C. Dorf argues that Justice Samuel Alito's majority opinion in Dobbs v. Jackson Women’s Health Organization eliminating the constitutional right to abortion misused pro-choice scholars’ work in an attempt to justify overturning Roe Casey. Professor Dorf observes that by pointing readers to the body of work by Justice Ruth Bader Ginsburg, Professor John Hart Ely, and other pro-choice scholars, Justice Alito effectively calls attention to their robust defense of abortion rights as essential to sex equality and an account of how the current hyper-conservative Court’s rulings are profoundly illegitimate.

Roe and Dobbs as Defining Cases for the Supreme Court and the Justices Who Wrote the Majority Opinions

Touro Law professor Rodger D. Citron argues that just as Roe v. Wade is the representative case of Justice Harry Blackmun’s tenure on the Supreme Court, so too will Dobbs v. Jackson Women’s Health Organization become the emblematic decision of its author, Justice Samuel Alito, Jr. Professor Citron analyzes the differences between the two decisions and the Justices who authored them, and what those differences mean about the Court that decided each of those cases.

Answering My Hate Mail: Democracy, Anger, and the Goldilocks Dilemma

Cornell Law professor Joseph Margulies responds to an angry reader’s email response to his previous column, observing that anger can be a productive and healthy emotion but can also be all-consuming and destructive. Professor Margulies suggests that arguing over whose anger is righteous and whose is not is not productive; instead, we need something that strides above the arguments, a set of ideals against which we can measure whether a particular species of anger is one that society should honor and encourage.

The Kavanaugh Court?

Illinois Law dean Vikram David Amar observes that Justice Brett Kavanaugh is emerging as a centrist perspective in key cases, including one expanding gun rights (New York State Rifle & Pistol Association v. Bruen) and one repudiating abortion rights (Dobbs v. Jackson Women’s Health Organization). Dean Amar points out that although Justice Kavanaugh voted with the majority in both cases, he added a narrower gloss via a concurring opinion and was the only Justice to do so in both cases.

On the Tenth Anniversary of Miller v. Alabama, Much Work Remains to End Juvenile Life Without Parole Sentences

In light of 2022 marking the tenth anniversary of the Supreme Court’s decision in Miller v. Alabama, Amherst professor Austin Sarat points out how important that decision was and how much still remains to be done to stop juvenile life without parole (LWOP) sentences. Professor Sarat points out that with the scientific recognition that the development of the human brain is not complete until a person is in their 20s, it does not make sense to treat child offenders the same way we treat adult offenders.

Clear Skies or Stormy Weather? The FAA’s Transportation Worker Exception After Southwest Airlines v. SaxonPart Two of a Two-Part Series

In this second of a two-part series of columns on the Supreme Court’s decision in Southwest Airlines v. Saxon, Barry Winograd describes some of the problems posed by the Court’s decision and reasoning. As Mr. Winograd explains, the opinion fails to clarify the governing standard, omits altogether any consideration of the applicable Railway Labor Act, creates confusion as to the classification of supervisors, and does not adequately consider the effects on the “gig” economy.

(Yet) Another Reason ISL Theory is Wrong About the Meaning of the Term State “Legislature”: The Constitution’s References to the Federal Counterpart—“Congress”

In light of the Supreme Court’s decision to grant review of a North Carolina partisan gerrymandering dispute involving the Independent State Legislature (ISL) theory, Illinois Law dean Vikram David Amar offers yet another reason that the theory is critically flawed. Although Dean Amar has described in numerous publications why ISL theory is illogical and atextual, he newly observes that the Constitution uses another term—“Congress”—to refer at times to the legislative body and other times to the lawmaking process, inclusive of presidential involvement.

Clear Skies or Stormy Weather? The FAA’s Transportation Worker Exception After Southwest Airlines v. SaxonPart One of a Two-Part Series

In this first of a two-part series of columns on the Supreme Court’s decision in Southwest Airlines v. Saxon, Barry Winograd summarizes the facts leading up to the case and the Court’s decision and reasoning. In particular, Mr. Winograd explains the two prior decisions addressing the FAA’s transportation worker exemption, Circuit City Stores, Inc. v. Adams, decided in 2001, concluding that the residual clause in Section 1 covers only transportation workers and not workers generally, and New Prime, Inc. v. Oliveira, applying the exception to an interstate truck driver classified as an independent contractor and not an employee.

The Roadmap for Pregnant Girls and Women to Assert Their Religious Liberty to Invalidate Abortion Bans

University of Pennsylvania professor Marci A. Hamilton calls upon the majority of Americans to insist that their worldviews and beliefs—not just those of the extreme Christian right—be recognized in the courts. Professor Hamilton explains how many individuals seeking an abortion in states that prohibit them can use a Religious Freedom Restoration Act (RFRA) to obtain an exemption to the abortion ban.

The End of Roe v. Wade

In this first of a series of columns on the Supreme Court’s elimination of the constitutional right to abortion, SMU Dedman School of Law professor Joanna L. Grossman describes the history of the right to abortion and explains how the decision in Dobbs v. Jackson Women’s Health Organization changes both the legal landscape and also our constitutional conception of what it means to be full members of society. Professor Grossman argues that with this ruling, the Supreme Court has returned women to the service of society, rather than allowing them the dignity of an autonomous life, and that is only the beginning.

With Dobbs, We’re All in Bork’s America Now

Amherst professor Austin Sarat and former federal prosecutor Dennis Aftergut argue that Justice Samuel Alito’s majority opinion in Dobbs v. Jackson Women’s Health Organization, together with the language in Justice Clarence Thomas’s concurring opinion, put the country on a path toward the totalitarian state that one-time Supreme Court nominee Robert Bork had envisioned. Professor Sarat and Mr. Aftergut point out that Bork’s America would have a constitution that does not evolve or change to meet new circumstances and that affords no protection of citizens’ privacy from government intrusion

Goodbye to the Establishment Clause

UNLV Boyd School of Law professor Leslie C. Griffin comments on the U.S. Supreme Court’s decision in Kennedy v. Bremerton School District, in which the Court allowed a public-school football coach to lead players in his public Christian prayer. Professor Griffin argues that the decision effectively deletes the Establishment Clause from the Constitution and elevates the free exercise rights of a few individuals.

Meet our Columnists
Vikram David Amar
Vikram David Amar

Vikram David Amar is the Dean and Iwan Foundation Professor of Law at the University of Illinois... more

Neil H. Buchanan
Neil H. Buchanan

Neil H. Buchanan, an economist and legal scholar, holds the James J. Freeland Eminent Scholar... 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 the Dwight D. Opperman Professor, Director, Center for Labor and Employment... 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 Law and Government at Cornell University. He was Counsel of... 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