Tag Archives: SCOTUS

Supporting Religion is Not Always Good for Religious Freedom

UNLV Boyd School of Law professor Leslie C. Griffin explains why broad support of religion is not necessarily good for religious freedom. Specifically, Griffin looks at the position of Judge Brett Kavanaugh on a number of issues from his time on the bench and before, and predicts that as a justice of the US Supreme Court, he is unlikely to ensure everyone’s constitutional rights are protected, but only those of certain groups.

“Casing” Brett Kavanaugh: Why Senate Hearings Can and Should Explore His Views on Past Supreme Court Cases, and at the Very Least His Views on Applying Originalism Where It Would Lead to Progressive Results

Illinois Law dean and professor Vikram David Amar explains why the norm of not asking a Supreme Court nominee about his specific views about specific cases does not make sense and renders the hearing unhelpful in evaluating him as a potential justice. Amar explains the distinction between promising to rule in a certain way and predicting how one might rule, and he debunks some of the reasons often given for the norm of not asking (or answering) these types of questions during the confirmation hearing.

Why I Didn’t Sign the Kennedy Clerks’ Letter Supporting Confirmation of Brett Kavanaugh

Cornell law professor Michael C. Dorf describes why he chose not to join the 72 other former law clerks of Justice Anthony Kennedy who signed a letter urging the confirmation of Judge Brett Kavanaugh. Dorf explains that the letter is at best misleading, and he argues that while a norm of deference may be preferable, that norm no longer exists, and deference to the president’s choice in this age of extreme polarization would amount to unilateral Democratic disarmament.

What We Can Learn About Stare Decisis (Respect for Precedent) from the Last Supreme Court Term

Illinois Law dean and professor Vikram David Amar comments on two decisions from the US Supreme Court’s 2017–18 term in which the Court notably overruled two longstanding constitutional precedents by 5–4 votes. Amar discusses the doctrine of horizontal stare decisis—the Court’s respect for its prior rulings—and focuses on three questions in particular these two cases present.

Collins v. Virginia: An Innocuous, Fourth Amendment Decision About Curtilage

Cornell law professor Sherry F. Colb comments on the US Supreme Court’s precedents recognizing, yet not clearly defining, “curtilage”—the area near one’s house that is constitutionally protected against warrantless searches by law enforcement. As Colb explains, the Court’s cases involving curtilage, including its recent decision in Collins v. Virginia leave many Fourth Amendment questions unanswered.

Replacing Justice Kennedy: Why Roe Won’t Be (Formally) Overruled, Same-Sex Marriage Rights Won’t Be Undone, and Affirmative Action Won’t Be Terminated, but Electoral Reform Could Suffer Greatly

Illinois Law dean and professor Vikram David Amar argues that while Justice Anthony Kennedy’s retirement from the US Supreme Court will change the institution, it may not result in a significant shift to the right on some hot-button issues, as many anticipate. Amar explains that the greatest casualty of Justice Kennedy’s retirement might be electoral reform—not reproductive rights, same-sex marriage, or affirmative action.

The Supreme Court and Conservatives’ Right Not to Be Associated in Any Way With Disagreeable Things

GW Law professor and economist Neil H. Buchanan argues that the pro-business, anti-union expressed during oral argument and in the majority opinion in Janus v. AFSCME, written by Justice Samuel Alito and joined by the other conservative justices including Justice Anthony Kennedy, epitomizes both Kennedy’s right-wing fundamentalism and the direction in which the Court would have continued to move even if he had chosen not to retire. Buchanan points out that the trend among the conservative justices is to insulate conservatives—especially Christian Republicans—from having to be in any way connected to anything with which they disagree, such as collective bargaining, sexual liberation, or provision of contraception.

Justice Kennedy’s Civil Procedure Legacy

Touro Law professor Rodger D. Citron comments on a less-discussed aspect of retiring Justice Anthony Kennedy’s jurisprudence: civil procedure. As Citron explains, Justice Kennedy did not author many civil procedure opinions, but the ones he did write were decidedly pro-business—limiting access to courts, capping punitive damages, and restricting personal jurisdiction in a personal injury context.

Can State Supreme Courts Protect Liberal Constitutionalism in the Coming Era of Reactionary SCOTUS Jurisprudence?

Cornell law professor Michael C. Dorf comments on the suggestion that liberals who are distressed about the impending era of reactionary US Supreme Court jurisprudence should focus efforts on change at the level of state supreme courts. Without discouraging such efforts, Dorf explains why this approach faces significant obstacles, and he argues that anyone concerned about the direction of the Court should not restrict their political activities to judicial elections but engage in organized opposition on multiple fronts.

Is Demonstrated Animus Irrelevant After Trump v. Hawaii?

Chapman University Fowler School of Law professor Celestine McConville considers whether the US Supreme Court’s decision in Trump v. Hawaii establishes a new equal protection rule regarding when the presence of government animus will invalidate government action. McConville points out that under Trump, a stated nondiscriminatory justification will outweigh demonstrated animus, provided the means are “plausibly related” to that justification—a bar so low, she argues, it does a disservice to the integrity of equal protection doctrine.

A Strong Anti-Choice Signal From the Court

UNLV Boyd School of Law professor Leslie C. Griffin discusses the US Supreme Court’s recent decision in NIFLA v. Becerra, in which a 5–4 majority of the Court struck down a California law requiring crisis pregnancy centers to inform their pregnant patients about abortion options. Griffin explains why the majority’s decision can only be read as a strong anti-choice signal that will only grow stronger with Justice Kennedy being replaced.

Questioning Justice Kennedy’s Replacement: Pay Attention Not Just to Roe v. Wade but Also the Right to Privacy and Contraception

Marci A. Hamilton, professor and resident senior fellow in the Program for Research on Religion at the University of Pennsylvania, explains why the impact of Justice Anthony Kennedy’s retirement from the US Supreme Court touches far more than just the issue of abortion—but the very notion of a constitutional right to privacy. Hamilton argues that if the Federalist Society has its way, the core reasoning of Roe v. Wade will be eviscerated and the constitutional right to privacy—from which the right to access to contraception and the right to engage in consensual sexual relations in private—will be eroded.

Kennedy’s Sadly and Unnecessarily Tainted Legacy

GW law professor and economist Neil H. Buchanan comments on Justice Anthony Kennedy’s announcement that he is retiring from the Supreme Court and the legacy he leaves. Buchanan laments that Justice Kennedy’s last term on the bench can only be described as tragedy, as he joined the conservative 5–4 majority on critical cases that Buchanan predicts will have a lasting harmful effect on individuals across the country and the world.

Carpenter and the Beginning of the End of Privacy

Cornell law professor Sherry F. Colb comments on the US Supreme Court’s recent decision in Carpenter v. United States, in which the Court held that the government must have a search warrant to obtain an individual’s cell-site location information (CSLI). Colb describes the Court’s holding and the dissenting opinions, and considers the Court’s minority (but growing) view that only property, and not privacy, is protected under the US Constitution—particularly when privacy rights encompass the right of a woman to obtain an abortion and the right of same-sex couples to engage in private, consensual sexual acts.

The Supreme Court Is Still Incoherent About Taxes and Finance, But the Conservatives Seem to Know What They Want

GW law professor and economist Neil H. Buchanan comments on two of last week’s decisions from the US Supreme Court that at least nominally involved tax law issues. Buchanan explains why the decisions suggest that the justices remain confused about taxes and financial issues more generally and suggests that the lower-profile case from last week may end up having the most important and negative effects going forward.

Justice Kennedy’s Replacement and the Religious Test Awaiting

Marci A. Hamilton, professor and resident senior fellow in the Program for Research on Religion at the University of Pennsylvania, comments on this week’s news from the US Supreme Court—its decisions upholding President Trump’s travel ban, striking down a California law affecting so-called crisis pregnancy centers, and the news that Justice Anthony Kennedy will be retiring. Hamilton cautions that the cases portend that, President Trump will, in effect, impose a religious test on candidates for Justice Kennedy’s replacement—a requirement expressly prohibited by the Constitution.

Silver Linings in an Otherwise Disappointing Travel Ban Ruling

Cornell law professor Michael C. Dorf condemns the Supreme Court’s 5–4 decision upholding President Trump’s travel ban but describes a few silver linings that the ruling contains. Specifically, Dorf points out that the majority left open the possibility of future litigation challenging allegedly unlawful border policies, explicitly overruled its decision in Korematsu v. United States (which upheld the internment of Japanese Americans during World War II), denounced President Trump’s anti-Muslim statements, and served as a clear reminder that We The People can and should hold our elected official accountable for enacting or supporting abominable policies.

How Do YOU Think About the Right to Vote?

UNLV Boyd School of Law professor Leslie C. Griffin comments on the US Supreme Court’s 5–4 decision in Husted v. A. Philip Randolph Institute, in which the Court upheld the legality of Ohio’s voter list maintenance procedure. Griffin explains some of the key points made in each of the four opinions and shares a deeply personal story about how she came to understand how seemingly innocuous list-maintenance laws like the one in this case disproportionately affect minorities, low-income people, the disabled, the homeless, and veterans—just as Justice Sotomayor described in her separate dissent.

Attitudinal and Doctrinal Takeaways from the Masterpiece Cakeshop Case

Illinois Law dean and professor Vikram David Amar and UC Davis Law emeritus professor Alan E. Brownstein discuss two doctrinal issues raised in the Supreme Court’s majority and concurring opinions in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission. Amar and Brownstein explain how Colorado could have reached the results it reached without disfavoring religion or religious liberty/equality at all, and they point out that the Court’s focus on the motives of the commissioners is unusual given the Court’s prior decisions on the role of invidious motives.

Originalism, the Contracts Clause, and the Sveen Case

Cornell law professor Michael C. Dorf argues that the form of originalism typically espoused by scholars—in which constitutional interpretation aims to recover the original public meaning of the text—often ends up being abused in practice. Judges and justices borrow the respectability of public meaning originalism to justify a generally discredited form of originalism that seeks answers in the framers’ and ratifiers’ intentions and expectations. To illustrate this point, Dorf points to Justice Gorsuch’s recent dissent in Sveen v. Melin, which looks not to the text of the Contracts Clause but to what Justice Gorsuch inferred the framers and ratifiers intended and expected.

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 Co... more

Neil H. Buchanan
Neil H. Buchanan

Neil H. Buchanan is an economist and legal scholar and a Professor of Law at The George Washington U... more

Sherry F. Colb
Sherry F. Colb

Sherry F. Colb is the C.S. Wong Professor of Law at Cornell University. Colb teaches courses in con... more

John Dean
John Dean

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

Michael C. Dorf
Michael C. Dorf

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

Marci A. Hamilton
Marci A. Hamilton

MARCI A. HAMILTON is the Robert A. Fox Leadership Program Professor of Practice, and Fox Family Pavi... more

Joseph Margulies
Joseph Margulies

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

Anita Ramasastry
Anita Ramasastry

Anita Ramasastry is the UW Law Foundation Professor of Law at the University of Washington School of... more

Lesley Wexler
Lesley Wexler

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