Democracy and the Tribal Blame Machine

Cornell Law professor Joseph Margulies describes the tribal blame machine, which both sides use to demonize the “other” side and drive us apart. Professor Margulies argues that a mature democracy must reject the tribal blame machine and instead embrace a fair, sober, even-handed appraisal of the facts, free from hyperbole and pot-banging.

Justice Alito’s Opinion on Abortion: Not Just the End of Reproductive Rights, But the Downfall of Fundamental Civil Liberties Guaranteed by the Fourth Amendment to All Americans

In this second of a series of columns on Dobbs v. Jackson Women’s Health Org., attorney Jon May argues that the decision threatens certain fundamental rights conferred by the Fourth Amendment. Mr. May predicts that those rights will not withstand the onslaught of law enforcement conduct in entering and searching our homes without a warrant, invading our private thoughts and associations found on our smart phones and computers, or stopping and searching us on the streets without probable cause or reasonable suspicion.

The Peculiar Historical Methodology of the SCOTUS Handgun Carry Case

Cornell Law professor Michael C. Dorf comments on the Supreme Court’s opinion in New York State Rifle & Pistol Assn., Inc. v. Bruen invalidating a New York law restricting licenses to carry concealed handguns to persons able to demonstrate a “special need” for one. Professor Dorf explains that the majority opinion adopts a methodology that focuses exclusively on history, which he argues could make it nearly impossible for government to protect people from new threats due to gun violence.

Social Security’s Good News is Good News

UF Levin College of Law professor and economist Neil H. Buchanan comments on the recent announcement that under one scenario, the depletion date of the Social Security trust funds is now one year later than previously predicted—now 2035. Professor Buchanan explains the significance of this announcement—that Franklin Delano Roosevelt’s visionary program will continue (for now) to protect all generations of Americans despite efforts of Republican autocrats to destroy it.

Happy the Elephant and Might Makes Right

Cornell Law professor Sherry F. Colb comments on a decision last week by the New York Court of Appeals dismissing a lawsuit that sought to free Happy the elephant from life as a caged attraction at the Bronx Zoo. Professor Colb rebuts the common argument that while humans are capable of fulfilling moral responsibilities and therefore have rights, nonhuman animals are incapable of fulfilling moral responsibilities and therefore lack rights.

The Supreme Court Further Dismantles the Establishment Clause, Empowers Religious Parents to Obtain Taxpayer Funds for Sectarian Schools, and Ignores the Rights of the Children in Carson v. Makin

University of Pennylvania professor Marci A. Hamilton comments on the U.S. Supreme Court’s decision earlier this week in Carson v. Makin, in which it held the Free Exercise Clause requires Maine to subsidize religious private schools because it subsidized non-religious private schools. Professor Hamilton argues that the decision further erodes the Establishment Clause and disregards the rights and needs of children.

The Complicity of the ‘Comfortable Liberals’ in the Decline of American Constitutional Democracy

UF Levin College of Law professor Neil H. Buchanan points out that some Democratic elites are complicit in the decline of American constitutional democracy when they support conservative policies and talking points in order to preserve their own personal comfort. Professor Buchanan points to the acceptance of the empty idea of “cancel culture” and the rejection of progressive prosecutors as two examples of this complicity.

The Religious Freedom Restoration Act Formula Comes Full Circle in Florida

University of Pennsylvania professor Marci A. Hamilton comments on the recent news that the Congregation L’Dor Va-Dor, a Jewish synagogue in Florida, has sued the state under the Florida Religious Freedom Restoration Act (RFRA) over its new restrictive abortion laws that it argues violate their religious faith. Professor Hamilton praises the synagogue for leading the charge against an oppressive minority but condemns the tool it must use to do so—RFRA— which Hamilton argues is a tried-and-true path to religious division and mutual intolerance.

New York’s High Court Rejects a Habeas Corpus Petition on Behalf of a Captive Elephant

Cornell Law professor Michael C. Dorf comments on a recent decision by the New York Court of Appeals ruling that Happy, an Asian elephant who has been imprisoned at the Bronx Zoo for nearly her entire half-century of existence—was not entitled to the writ of habeas corpus. Professor Dorf points out the questionable logic and errors that led the court to its conclusion and suggests that, despite the sad ending for Happy, her case might mark a turning point in the legal rights of nonhuman animals, evidenced by the thoughtful and compassionate dissent by two members of that court.

Justice Alito’s Opinion on Abortion: Not Just a Threat to Reproductive Rights, but to All Constitutional Liberties Not Expressly Set Out in the Constitution

Attorney Jon May argues that the reasoning of Justice Samuel Alito’s leaked majority draft of Dobbs v. Jackson Women’s Health Org. poses a threat not only to reproductive rights, but to all constitutional liberties not expressly enumerated in the Constitution. Mr. May points out that the radical departure of Justice Alito’s opinion could pave the way for the Court to overturn numerous rights recognized over the past seventy years deriving from the First, Fourth, Fifth, Sixth, and Fourteenth Amendments.

Three Questions that the House Select Committee’s Spellbinding Second Hearing Asks All of Us

Former federal prosecutor Dennis Aftergut describes three future-oriented questions the House Select Committee investigating January 6 poses to all Americans: (1) Do we choose to live in a fact-based world? (2) Do we recognize the danger that Trump’s continuing Big Lie poses to our ability to choose our own leaders? And (3) if we do, will we demand accountability for those whose misdeeds still threaten us?

Was It Really a Threat to Democracy?

Cornell Law professor Joseph Margulies observes that while the events of January 6, 2021, were “horrific,” “criminal,” and “anti-democratic,” he suggests that they were never a true threat to democracy. Professor Margulies points out that polling may be misleading and that overblown partisan rhetoric, by either side, does not equip us to confront true challenges to democracy when they do arise

How and Why Justice Breyer (and Other Justices) Should Weigh in on the Independent-State-Legislature Notion Before Breyer Retires

Illinois Law dean Vikram David Amar argues that the U.S. Supreme Court should put the so-called Independent State Legislature (ISL) theory to rest sooner rather than later. Specifically, Dean Amar suggests that Justice Stephen Breyer—who is set to retire but who joined Justices John Paul Stevens, Ruth Bader Ginsburg and David Souter in expressly rejecting ISL in 2000—should be among the voices to condemn the unsupportable theory.

How Did the Public Discussion About Inflation Become Even More Ridiculous?

UF Levin College of Law professor and economist Neil H. Buchanan argues that the political posturing about inflation in this country is becoming increasingly ridiculous. Professor Buchanan points out that we have no idea what is an acceptable (or unacceptable) level of inflation and that despite endlessly criticizing Democrats in power for higher rates of inflation, Republicans have proposed no plan for how to reduce inflation.

Some Questions for the Alito Five

In light of Justice Samuel Alito’s leaked draft in Dobbs v. Jackson Women’s Health Org., which would overrule Roe v. Wade and its progeny, UChicago Law professor emeritus Albert W. Alschuler and Harvard Law professor emeritus Laurence H. Tribe ask six questions of the apparent five-Justice majority. Professors Alschuler and Tribe point out some of the inconsistencies and illogic of the opinion and call on the Justices to account for these issues.

Will We Fall for Factless GOP Attacks on the January 6 Committee?

Former federal prosecutor Dennis Aftergut argues that because the facts are not on their side, Trump supporters’ main ploy in combating the January 6 Committee will be simply to take advantage of media “both-siderism” to confuse Americans. Mr. Aftergut points out that the promulgators of both-siderism are counting on Americans taking recycled disinformation at face value and treating it as equivalent to testimony under oath and documents that don’t lie.

Judicial Deference and the Future of Lethal Injection

Amherst professor Austin Sarat comments on a recent decision by a federal district court judge deferring to the evidence provided by the state in support of its lethal injection procedure, despite significant contradictory evidence. Professor Sarat argues that the trilogy of Supreme Court precedents on lethal injection not only altered the legal standards but tilted the playing field for fact-finding when death row inmates bring lethal injection challenges.

Are Activist Judges Efficient? Who Cares? What Matters Is That They Do Justice

UF Levin College of Law professor and economist Neil H. Buchanan explains why it is “efficient” (in one sense of that fraught word) for courts to sometimes act like legislatures—i.e., to legislate from the bench. Professor Buchanan points out that deciding cases too narrowly or incrementally causes unnecessary litigation to try to identify where courts will draw the line, particularly when the judges and justices already know where they want that line to be. He emphasizes, however, that efficiency is not the ultimate goal of the law, and minimizing litigation costs should never supersede the pursuit of justice.

Are Religious Abortions Protected?

Cornell Law professor Sherry F. Colb explores a suggestion by some pro-choice advocates that a “religious abortion” might serve as a workaround to the apparently imminent demise of the constitutional right to abortion. Professor Colb explains why that workaround is unlikely to prevail: the current Court discounts the Establishment Clause, and its ostensible embrace of the Free Exercise Clause is actually friendliness only to conservative Christianity (and to Judaism and Islam where the traditions happen to be the same).

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