Cornell law professor Sherry F. Colb comments on a case the U.S. Supreme Court will consider this term that presents the question whether the Eighth Amendment ban on cruel and unusual punishment prohibits sentencing a juvenile offender to life without the possibility of parole. Colb considers the wisdom and constitutionality of imposing such a sentence on a person who was under 18 at the time of his crime.
In honor of the late Justice Ruth Bader Ginsburg, University of Pennsylvania professor Marci A. Hamilton and former clerk to Justice Sandra Day O’Connor, reflects on our country’s first two female Supreme Court Justices and their similarities and differences. Hamilton points out that a majority of Americans support a woman’s right to choose abortion in at least some circumstances and the right to contraception and warns the President and the Senate to think long and hard before they replace Ginsburg on the fly with a someone who is a threat to abortion and contraception.
Cornell law professor Joseph Margulies explains why the passing of Supreme Court Justice Ruth Bader Ginsburg last week should invigorate the left into seeking lasting change through the legislative and executive branches of government. Margulies points out that the myth of the Court as the ultimate defender of underrepresented minorities and the poor is, for much of the Court’s history, just a myth. He calls upon people everywhere to vote and make their will known, and he predicts that the Court will not stray far from the popular will.
Cornell law professor Michael C. Dorf responds to claims that the U.S. Supreme Court’s decision last term invalidating the Trump administration’s effort to rescind the Deferred Action for Childhood Arrivals (DACA) program license President Trump to take actions that will be difficult for a future Democratic administration to undo. Dorf argues that characterizing the ruling as a win for Trump and his executive power is far-fetched, and we should instead be concerned with the long-lasting damage to the environment and our nation’s foreign policy caused by the Trump administration.
Cornell law professor Michael C. Dorf comments on a recent series of articles published on CNN.com purporting to reveal deep secrets about the U.S. Supreme Court’s deliberations. Dorf points out that the so-called revelations about the Court reveal little or nothing that Court watchers don’t already know or infer, which, paints a reassuring picture of the Court as operating behind closed doors exactly as we expect it to.
Marci A. Hamilton, a professor at the University of Pennsylvania and one of the country’s leading church-state scholars, describe how legal entities wielded their religious identity as both a shield and a sword last term before the U.S. Supreme Court. Hamilton points out that religious entities won key cases that allow them to receive from government funding while enjoying exemptions from neutral generally applicable non-discrimination laws.
Cornell law professor Michael C. Dorf comments on the recent decision by the U.S. Supreme Court in McGirt v. Oklahoma, holding that a substantial portion of the state of Oklahoma is an Indian reservation of the Creek Nation. Dorf observes that the majority’s approach in McGirt makes it more likely that courts will find the existence of reservations for other tribes, but there could be collateral consequences in many other contexts.
In this second of a two-part series of columns about the U.S. Supreme Court’s recent decision in the “faithless elector cases, Illinois Law dean and professor Vikram David Amar describes some good news that we may glean from those cases. Specifically, Amar points out that states have many ways of reducing elector faithlessness, and he lists three ways in which the Court’s decision paves the way for advances in the National Popular Vote (NPV) Interstate Compact movement.
SMU Dedman School of Law professor Joanna L. Grossman comments on the U.S. Supreme Court’s recent decision upholding the Trump administration’s religious and moral exemptions to the contraceptive mandate of the Affordable Care Act (ACA). Grossman provides a brief history of the conflict over the growing politicization of contraception in the United States and argues that the exemptions at issue in this case should never have been promulgated in the first place because they have no support in science or public policy.
UNLV Boyd School of Law professor Leslie C. Griffin describes the ministerial exception—a First Amendment rule created by courts that bars the application of anti-discrimination laws to religious organizations’ employment relationships with its “ministers”—and enumerates some of the cases in which the exception led to dismissal of a lawsuit. Griffin argues that we as a society cannot achieve full justice as long as courts interpret religious freedom to include a ministerial exception that condones racial discrimination lawsuits.
Cornell law professor Sherry F. Colb describes how the U.S. Supreme Court purported to allow the state of Kansas to substitute one insanity defense for another, but in fact approved its abolishment of the insanity defense altogether. Colb explains the difference between the insanity defense—an affirmative defense to the commission of a crime—and facts that negate mens rea—the mental element of a crime. Colb also notes how in dissent, Justice Stephen Breyer made a case for veganism, albeit probably inadvertently.
In this first of a two-part series of columns about the U.S. Supreme Court’s recent decision in the “faithless elector” cases, Illinois law dean and professor Vikram David Amar expresses disappointment that the majority opinion—authored by Justice Elena Kagan—and concurring opinion—by Justice Clarence Thomas—are not as well reasoned or careful as they could be. Amar points out some of the ways in which the opinions fall short, noting some of the arguments that merited more discussion, or at least more thorough consideration.
UNLV Boyd School of Law professor Leslie C. Griffin comments on three recent decisions by the U.S. Supreme Court in which religion has won, at the expense of women. Griffin explains why the Court’s decisions in Our Lady of Guadalupe School v. Morrissey-Berru (and the consolidated case, St. James School v. Biel), Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania (and the consolidated case, Trump v. Pennsylvania), and Espinoza v. Montana Department of Revenue together amount to sanctioned and government-funded discrimination masquerading as religious freedom.
SMU Dedman School of Law professor Joanna L. Grossman comments on the U.S. Supreme Court’s decision in June Medical Services v. Russo, in which a 5-4 majority of the Court struck down a Louisiana law regulating abortion providers. Grossman describes the history of abortion decisions that got us to this place today and explains why the core right to seek a previability abortion without undue burden from the government remains intact.
Jareb Gleckel assesses what Chief Justice John Roberts’s concurrence in the June Medical decision might tell us about the future of abortion in the United States. Gleckel suggests that the concurrence suggests that the Chief Justice will not vote to overrule Roe and Planned Parenthood v. Casey but cautions that the test the Chief Justice embraces could provide a roadmap for anti-abortion states going forward.
Touro law professor Rodger D. Citron analyzes the oral arguments in the cases before the U.S. Supreme Court regarding demands for President Trump’s financial records. Citron explains why it seems likely that the Court will reverse the lower courts’ decisions refusing to quash the House committee subpoenas and offers a number of observations based on his review of the transcript.
NYU law professor Samuel Estreicher and rising 3L Daniel Folsom comment on the U.S. Supreme Court’s recent decision in County of Maui v. Hawaii Wildlife Fund, in which the Court interpreted a provision of the Clean Water. Estreicher and Folsom argue that the case presented an opportunity to clarify the murky question of when the Chevron doctrine applies, yet the Court avoided answering that question.
SMU Dedman School of Law professor Joanna L. Grossman and University of Pittsburgh law professor Deborah L. Brake comment on the U.S. Supreme Court’s recent ruling that Title VII prohibits discrimination on the basis of sexual orientation and gender identity. Grossman and Brake discuss the history of court decisions interpreting the meaning of “because of sex” under Title VII and describe the Supreme Court’s reasoning in Bostock v. Clayton County.
Cornell law professor Michael C. Dorf discusses a claim by Missouri Senator Josh Hawley that the purpose of originalism and textualism is to provide a mechanism for obtaining results that religious conservatives favor on ideological grounds. In light of two recent Supreme Court decisions that disappointed conservatives, Dorf considers how conservatives might respond to these decisions and expresses hope that they might rethink their support for Trump. Dorf observes that while Supreme Court rulings do sometimes follow election returns, the reverse is also sometimes true, and we can’t yet know which direction this year will flow.
University of Pennsylvania professor Marci A. Hamilton applauds the U.S. Supreme Court’s decision in Bostock v. Clayton County, holding that gay and transgender employees are protected under Title VII, but she cautions that that Bostock’s contribution to LGBTQ rights is curtailed by the Religious Freedom Restoration Act (RFRA). Hamilton calls for repeal, or at least significant reform, of RFRA to protect the civil rights of LGBTQ individuals restore the values of mutual dignity and respect enshrined in law.