Tag Archives: SCOTUS
Mandatory Vaccination and the Future of Abortion Rights

In light of recent news that Pfizer and Moderna have apparently created safe and effective vaccines against COVID-19, Cornell law professor Michael C. Dorf considers whether the government can mandate vaccination for people who lack a valid medical reason not to get vaccinated. Dorf briefly addresses issues of federalism and religious objections to vaccination and then addresses the question whether mandatory vaccination might be inconsistent with a right to abortion.

The Mask Slips: Standing, the Affordable Care Act, and Hypocrisy in High Places

Cornell law professor Sherry F. Colb considers one aspect of the oral argument in California v. Texas, the latest challenge to the Affordable Care Act to come before the U.S. Supreme Court. Specifically, Colb considers the way in which some of the Justices talked during the oral argument about the doctrine of judicial standing, and she calls out those Justices’ hypocrisy as to that issue.

The Affordable Care Act Challenge and the Senate Runoff Elections in Georgia

Cornell law professor Michael C. Dorf comments on the third challenge to the Affordable Care Act (ACA) that has made it before the U.S. Supreme Court, and considers how the case will play in the upcoming Georgia runoff elections. Dorf argues that absent a dramatic and highly unusual development—like a Supreme Court decision rejecting the ACA challenge in the next few weeks—that should help the Democratic candidates in Georgia’s runoff elections.

Pope Francis’s Statement Endorsing Civil Protections for Same-Sex Couples Undermines the Moral Legitimacy and Legal Arguments in Fulton v. City of Philadelphia

David S. Kemp, a professor at Berkeley Law, and Charles E. Binkley, MD, the director of bioethics at Santa Clara University’s Markkula Center for Applied Ethics, consider the implications of Pope Francis’s recently revealed statement endorsing same-sex civil unions as they pertain to a case currently before the U.S. Supreme Court. Kemp and Binkley argue that the Pope’s statement undermines the moral legitimacy of the Catholic organization’s position and casts a shadow on the premise of its legal arguments.

Stigma and the Oral Argument in Fulton v. City of Philadelphia

UNLV Boyd School of Law professor Leslie C. Griffin explains why stigma is a central concept that came up during oral argument before the Supreme Court in Fulton v. City of Philadelphia. Griffin points out that some religions have long supported racial discrimination, citing their religious texts, but courts prohibited such discrimination, even by religious entities. Griffin argues that just as religious organizations should not enjoy religious freedom to stigmatize people of color, so they should not be able to discriminate—and thus stigmatize—people based on sexual orientation.

What Is a Seizure, and What Is a Holding? The Court Hears Argument in Torres v. Madrid

Cornell law professor Sherry F. Colb comments on two particular aspects of a case in which the U.S. Supreme Court heard oral argument last month, Torres v. Madrid. First, Colb discusses the distinction, for Fourth Amendment purposes, between touching someone directly with one’s hands and touching someone indirectly using an inanimate object. Second, she explains the difference between holding and dicta in a court opinion. Using these two points as illustrations, Colb shows how flexible the Constitution can be, lending itself to very different interpretations.

The Supreme Court Limbers Up to Aid and Abet Trump’s Coup

UF Levin College of Law professor and economist Neil H. Buchanan describes how the U.S. Supreme Court is readying itself to declare Trump the winner of the election. Professor Buchanan points out that no court acting in good faith would apply the text of the Constitution or existing Supreme Court precedents in a way that would allow any of this scheme to see the light of day, but based on what Justice Kavanaugh has written and what Justice Gorsuch strongly suggests, the Court might not even have that minimum amount of good faith.

If the Challengers Prevail on the Merits of the ACA California v. Texas Case, What is the Appropriate Remedy and What Effect Should the Ruling Have on the Entirety of the ACA? Part Four in a Series

In this fourth of a series of columns examining the California v. Texas case challenging the Affordable Care Act (ACA), Illinois law dean Vikram David Amar, Michigan Law dean emeritus Evan Caminker, and Illinois law professor Jason Mazzone consider what the appropriate remedy should be if the challengers prevail on the merits of the case. The authors explain why enjoining the 2017 amendment, which zeroed out the potential tax penalty for failure to maintain the specified health insurance coverage, is a more appropriate remedy than striking down the entire ACA.

The U.S. Supreme Court Cannot Determine the Election Result

Amherst College Associate Provost Austin Sarat and attorney Daniel B. Edelman argue that there is nothing the Supreme Court can do to prevent governors from certifying slates of electors that actually reflect the vote of the people in their states. Sarat and Edelman explain why Bush v Gore is both inapplicable, and by its own terms, never supposed to be used as precedent.

The (Unwanted) Return of Bush v. Gore and Ruth Bader Ginsburg’s Underappreciated Impact on the 2020 Election

Illinois law dean and professor Vikram David Amar describes an underappreciated influence of the late Justice Ruth Bader Ginsburg—her carefully reasoned majority opinion in Arizona Legislature v. Arizona Independent Redistricting Commission. As Dean Amar explains, in that case, Justice Ginsburg rejected nearly identical arguments to those relied on today in asking federal courts to challenge state courts’ and agencies’ rulings protecting the right of their citizens to vote as provided for under state statutes and constitutions.

Options for Biden’s Supreme Court Reform Commission

Cornell law professor Michael C. Dorf explores several options that Democratic presidential candidate Joe Biden should consider if he wins the election and fulfills his proposal of convening a bipartisan commission of constitutional scholars to study and recommend court reforms. Dorf discusses the benefits and limitations of each option and describes how Congress and a President Biden could implement meaningful court reform that could withstand review by the Supreme Court itself.

The Questions I Would Have Asked Judge Amy Coney Barrett Before Voting for Her to Ascend to the United States Supreme Court

Marci A. Hamilton—a professor at the University of Pennsylvania and one of the country’s leading church-state scholars—offers eight questions she would have asked Judge Amy Coney Barrett during her confirmation hearings. Hamilton points out that questioning a person’s religious affiliation is considered taboo because of the false, public mythology in the United States that religion is always good and pure, despite overwhelming evidence that religion, which is run by humans, often perpetuates domestic violence against women and children.

Is the So-Called Mandate Without Any Tax Consequences Unconstitutional? And If So, How Should a Court Remedy That? Part Three in a Series Examining Underexplored Issues in the California v. Texas Affordable Care Act Case

In this third of a series of columns examining underexplored issues in the California v. Texas case challenging the Affordable Care Act (ACA), Illinois law dean Vikram David Amar, Michigan Law dean emeritus Evan Caminker, and Illinois law professor Jason Mazzone consider whether the so-called individual mandate of the ACA, now without any tax consequences, is unconstitutional, as the challengers argue. The authors explain why, in their view, the challengers are incorrect, regardless of whether the word “shall” in the ACA is interpreted as obligatory or not.

“Standing” In Unfamiliar Territory: Part Two in a Series on the California v. Texas Affordable Care Act Case

In this second of a series of columns on the latest prominent challenge to the Affordable Care Act (ACA), Illinois law dean Vikram David Amar, Michigan Law dean emeritus Evan Caminker, and Illinois law professor Jason Mazzone comment on the standing issue presented in California v. Texas. The authors explore the Solicitor General’s creative argument and argue that the argument leaves several hurdles unaddressed. The authors point out that even if the plaintiffs in these cases can overcome the hurdles, the Court should consider that embracing the Solicitor General’s broad new theory would open the door to other, even more aggressive, applications.

A Somewhat Optimistic View of the Possible Constitutional Crisis of 2020

UF Levin College of Law professor and economist Neil H. Buchanan reflects on the contributions of the late Justice Ruth Bader Ginsburg to tax law jurisprudence and discusses the potential chaos that faces our country in the upcoming elections. Although he expresses cautious optimism that law and the American public together should prevent a constitutional crisis, Buchanan warns that we should all be frightened by the fact that the election can still be stolen if enough carefully placed Republican partisans are willing to upend our constitutional democracy.

Here We Go Again: The Supreme Court Considers Whether to Further Narrow the Law of Personal Jurisdiction

Laura Dooley and Rodger D. Citron—both law professors at Touro College, Jacob D. Fuchsberg Law Center—comment on two consolidated cases pending before the U.S. Supreme Court that present questions of the exercise of personal jurisdiction. Dooley and Citron summarize the facts and procedural history of each case, analyze the issues raised by the defendant, and consider how the recent death of Justice Ruth Bader Ginsburg might affect the Court’s decision.

Reflections on the Pending Supreme Court Challenge to the Affordable Care Act in California v. Texas: Part One in a Series

In this first of a series of columns on the latest prominent challenge to the Affordable Care Act (ACA), Illinois law dean Vikram David Amar, Michigan Law dean emeritus Evan Caminker, and Illinois law professor Jason Mazzone examine the stare decisis effects of the Supreme Court’s initial blockbuster decision involving the ACA. The authors demonstrate several, perhaps surprising, ways that the earlier decision should shape how the Court views the present challenge.

The Construction of a Supreme Court to Thwart a Majority of Americans

Marci A. Hamilton—a professor at the University of Pennsylvania and one of the country’s leading church-state scholars—warns of a Supreme Court with at least six Catholics, far greater representation than in the general population of the country. Hamilton points out that the disconnect between the composition of the Supreme Court and the rest of the United States is partly a result of the courts being the final haven for those who have lost the culture wars, given that the majority of Americans endorse greater civil rights for the oppressed.

In Ruth We Trust: How the Pregnant Workers Fairness Act Can Promote Women’s Equal Citizenship and Justice Ginsburg’s Legacy

In honor of the late Justice Ruth Bader Ginsburg, SMU Dedman School of Law professor Joanna L. Grossman explains how the Pregnant Workers Fairness Act (PWFA) can promote women’s equal citizenship and protect Justice Ginsburg’s legacy of shaping gender equality. Grossman argues that the PWFA could help break down entrenched occupational segregation in the American economy, and, in so doing, honor Justice Ginsburg’s lifelong commitment to ensuring that women can be full members of society.

My Favorite Three from RBG

Illinois law dean and professor Vikram David Amar reflects on three writings by the late Justice Ruth Bader Ginsburg that he finds himself most drawn to. Amar describes these writings as addressing ideas central to our form of democratic government, namely popular sovereignty, equal voting access, and judicial deference to Congress on policies involving the entire nation.

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

Sherry F. Colb
Sherry F. Colb

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

MARCI A. HAMILTON is the Fels Institute of Government Professor of Practice, and Fox Family... 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 Associate Provost, Associate Dean of the Faculty and William Nelson Cromwell... more

Lesley Wexler
Lesley Wexler

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