Justices Thomas and Alito Want a Constitutional Right to Pray Away the Gay

Cornell Law professor Michael C. Dorf discusses the Supreme Court’s refusal to hear a case challenging Washington State’s ban on conversion therapy, Tingley v. Ferguson, and specifically the implications of the dissent from Justices Clarence Thomas and Samuel Alito. Professor Dorf explains that their dissenting opinion demonstrates their willingness to invalidate such bans based on free speech, a stance that could undermine the regulation of medical practices. Professor Dorf points out that while a circuit split exists on the legality of conversion therapy bans, the broader concern is the potential impact of the Justices’ views on medical regulation, including recent decisions regarding access to abortion medication like mifepristone.

Going to the Altar: Lisa Sarnoff Gochman’s Book on the Supreme Court

UNLV Boyd School of Law professor Leslie C. Griffin recounts her experience reading At the ALTAR of the Appellate Gods: Arguing before the US Supreme Court by Lisa Sarnoff Gochman. Amidst a tragic backdrop of recent violence at UNLV, Professor Griffin reflects on Gochman’s book, which provides a human perspective on appellate law through her experience arguing in the notable Supreme Court case, Apprendi v. New Jersey. As Professor Griffin describes, Gochman’s narrative highlights the challenges and intricacies of presenting a case before the Supreme Court, offering insights into the legal process and the personal journey of an appellate lawyer.

Sandra Day O’Connor’s Legacy: A Beacon of Judicial Restraint and Independence in the Supreme Court

Lauren Stiller Rikleen reflects on the legacy of Justice Sandra Day O’Connor, highlighting her respect for judicial restraint and precedent, particularly in cases regarding reproductive rights. Contrasting O’Connor’s approach with the current Supreme Court's inclination influenced by the Federalist Society, Ms. Rikleen suggests that the Court’s current Justices could benefit from O’Connor’s example of independence and commitment to precedent. She also discusses the shift in the Court’s composition and ideology following O’Connor's retirement, noting the increasing influence of the Federalist Society in shaping a judiciary more ideologically driven and less bound by precedent, as exemplified by recent decisions like the overturning of Roe v. Wade.

Courts Need to Quickly Dispose of New Attempts to Legitimize the Imperial Presidency

Amherst professor Austin Sarat discusses former President Donald Trump’s expansive interpretation of presidential power, particularly his claim of immunity from criminal prosecution and civil liability for actions taken while in office. Trump’s views, which have been rejected by lower courts, are seen as an extreme version of the “Imperial Presidency” concept warned about by historian Arthur Schlesinger. Professor Sarat argues that courts should expedite and reject Trump’s appeals on these grounds, as granting such sweeping immunity claims would be disastrous for American democracy and the rule of law.

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.

Dear Students, I Don’t Care What You Think

Cornell professor Joseph Margulies emphasizes the importance of critical thinking and evidence-based reasoning in the classroom, stating that while he does not care about the specific opinions of his students, he does care that these opinions are well-supported and thoughtfully articulated. Professor Margulies challenges students to understand and defend their beliefs, whether on controversial topics like the Israeli-Palestinian conflict, prison reform, or the war on terror, and he expects them to be aware of the complexities, evidence, and counterarguments related to their views.

God’s Enduring Irony

Cornell professor Joseph Margulies considers the notion of equality and human nature, challenging the idea that monstrous actions make individuals fundamentally different from the rest of society. Professor Margulies argues that recognizing our shared capacity for brutality underscores that even those who commit heinous acts are not inherently “other” and should be held accountable as members of our collective humanity, rather than being cast out or labeled as fundamentally different.

Supreme Court’s Hands-Off Attitude Contributes to Growing Public Doubts about the Death Penalty

Amherst professor Austin Sarat reflects on the Death Penalty Information Center’s year-end report, which highlights both progress in abolishing capital punishment in the U.S. and the Supreme Court’s reluctance to ensure fairness in death penalty cases. Professor Sarat argues that the Supreme Court’s diminishing role in scrutinizing death penalty cases and its tolerance for injustice in these matters may be contributing to growing public skepticism about the death penalty, evidenced by increasing support among lawmakers and the public for its repeal or limitation.

How Important is the Eighth Circuit’s Recent Ruling that the Voting Rights Act Does Not Contain a Private Right of Action? Section 1983 and Ex Parte Young as Workarounds

UC Davis law professor Vikram David Amar argues that a recent decision by the U.S. Court of Appeals for the Eighth Circuit, holding that Section 2 of the Voting Rights Act does not confer a private right to sue, may not be as catastrophic as some fear, given that there are potential workarounds for victims of Voting Rights Act violations. Professor Amar suggests that plaintiffs could use alternatives like 42 U.S.C. § 1983 or Ex Parte Young to address violations, as these routes do not require an explicit or implied private right of action under the statute being violated.

The Year’s Worst Legal Decision: 2023 Edition

Amherst professor Austin Sarat argues that the U.S. Supreme Court’s decision in Students for Fair Admissions v. Harvard, which ended affirmative action in higher education, is the worst legal decision of 2023, setting back efforts to dismantle white privilege in the U.S. and resisting the construction of a more inclusive society. Professor Sarat explains why the decision is undemocratic, exacerbating racial inequities and closing pathways to power and prosperity for students of color, contrary to the aspirations of a genuinely inclusive and egalitarian democracy.

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.

This Is Why I Have Faith in the Future of the United States Despite the Ill Winds of Fascism and Christian Nationalism

University of Pennsylvania professor Marci A. Hamilton argues that the United States faces two significant threats: Donald Trump, whom she describes as a fascist with dictatorial aspirations, and a right-wing evangelical-fundamentalist Catholic axis intent on a theocratic takeover, both of which undermine democracy and civil rights. Professor Hamilton emphasizes that these threats are bolstered by historical distortions and a disregard for the Constitution, yet she expresses hope in the public’s rejection of this authoritarianism, as evidenced by reactions to the Dobbs v. Jackson Women’s Health Organization decision and the preservation of abortion rights in conservative states.

The View From Cornell

Cornell professor Joseph Margulies advocates for the application of restorative justice models at Cornell University in response to recent incidents of harassment and threats affecting Jewish, Muslim, Arab, and Asian students. Professor Margulies argues that understanding and repairing the harm caused by both protected speech and unprotected conduct is crucial, and he stresses the importance of unity and mutual respect in overcoming divisions and hatred on campus.

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.

A Message from Bellwether Pennsylvania Elections: Issues Other Than Abortion Are Winners, Too!

Former federal prosecutor Dennis Aftergut argues that mainstream media’s failure to cover certain substantive news stories, such as local election results and their implications, can lead to a lack of awareness about issues that significantly affect the future of democracy. Mr. Aftergut encourages citizens to influence media coverage by voicing their desire for real news through letters to editors and social media, thereby contributing to a more informed public discourse.

Thirty-Five Years of the “Citizens’ Constitution” of Brazil: A Review

Carlos Bolonha, professor of law at Federal University of Rio de Janeiro; Igor De Lazari, a PhD student at Federal University of Rio de Janeiro and state judge; and Antonio Sepulveda, professor of law at Getulio Vargas Foundation (FGV) and at the Fluminense Federal University; highlight the Brazilian Constitution’s adaptability and resilience over 35 years, having undergone 131 amendments to address contemporary democratic challenges and maintain stability despite political and economic turmoil. Despite these successes, there remains a significant gap between the constitutional promises and their actual fulfillment among Brazilians, with issues like widespread disinformation, inconsistent legal applications, and a lack of popular constitutional engagement still prevalent.

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.

Maybe Sam Bankman-Fried is an Altruist and a Crook

Cornell Law professor Michael C. Dorf comments on last week’s conviction of Sam Bankman-Fried on fraud charges related to the operations of his cryptocurrency platform, FTX. Professor Dorf notes that while some view him as a contemporary Robin Hood, given his donations to effective altruistic causes, his actions raise questions about the line between altruism and criminality.

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