Cornell law professor Michael C. Dorf argues that the question Justice Clarence Thomas asked during oral argument in Flowers v. Mississippi potentially reflects a view inconsistent with one he and other conservative justices have strongly endorsed in the past. Dorf points out that Justice Thomas’s question, regarding the race of jurors struck by the defense counsel, suggests that discrimination against one group can cancel out discrimination against another, which is directly at odds with his expressed view that the Constitution forbids all government consideration of race.
Cornell law professor Sherry F. Colb comments on a case in which the US Supreme Court recently granted review, Ramos v. Louisiana, which presents the question whether states may permit conviction of an accused criminal on less than a unanimous jury voting “guilty.” Colb explains the doctrine of incorporation—by which most provisions of the Bill of Rights are held to be applicable as against the states as well as the federal government through the Fourteenth Amendment—and explains the possible significance of a unanimous jury verdict.
Cornell law professor Michael C. Dorf points out that, taken to its logical conclusion, the originalism philosophy espoused by US Supreme Court Justice Clarence Thomas should mean that the Constitution places stricter limits on states than it does on the federal government. As Dorf explains, the “original meaning” of the Bill of Rights as it applies to the states should refer to its meaning in 1868 (when the Fourteenth Amendment was adopted) rather than 1791 (when the Bill of Rights itself was adopted) because the Fourteenth Amendment makes the Bill of Rights applicable to the states. Dorf describes several key differences between the understanding of the Bill of Rights in 1868 and 1791 and considers whether one of the originalist justices will follow where the logic of their philosophy leads.
UNLV Boyd School of Law professor Leslie C. Griffin comments on a case heard by the US Supreme Court this week raising questions about the Establishment Clause. Griffin summarizes some of the main points of each of the advocates in the case and argues that the Court should provide a clearer standard—a straightforward rule that one religion cannot be preferred to another.
NYU law professor Samuel Estreicher comments on Kisor v. Wilkie, a case currently before the US Supreme Court that raises the narrow question whether a court should accept an interpretation by the Department of Veterans Affairs of its own technical regulation but also gets at a broader question of judicial deference more generally. Estreicher argues that when agencies interpret their own regulations, courts should afford those interpretations only Skidmore respect, not the higher Chevron-style deference that has come to be commonplace.
Cornell law professor Sherry F. Colb comments on a case the US Supreme Court recently agreed to review raising the question whether a state statute may constitutionally conduct a blood test on an unconscious driver suspected of drunk driving under a theory of “implied consent.” Colb explains the meaning of “implied consent”—deceivingly named, for there is no actual consent—and predicts that, consistent with the Court’s recent precedent on a similar issue, the state statute should be struck down.
Cornell law professor Michael C. Dorf comments on a case arising from the Trump administration’s decision to add a citizenship question to the 2020 census questionnaire—a case the US Supreme Court had on its calendar for oral arguments until late last week, when the federal district judge issued an opinion and enjoined the government from including the question. Despite the original issue presented in the case (a technical one about the scope of discovery) being made moot by the district court opinion, Dorf discusses the remaining and greater issue of how to discern and address illicit government motives.
Cornell law professor Sherry F. Colb comments on a case in which the US Supreme Court is considering whether to grant review that presents the question whether police must obtain a search warrant before bringing a trained narcotics dog to sniff at a person’s door for illicit drugs. Colb highlights some of the most interesting arguments on the issue and explains some of the nuances that make a clear answer more elusive in these cases.
GW law professor and economist Neil H. Buchanan explains the benefits of a tax policy that eliminates the “realization requirement” but describes how a hyper-conservative Supreme Court might go to great lengths to strike down such a policy. Buchanan points to an all-but-overturned Supreme Court decision from 1920 and suggests that the conservatives on the Court could ignore the (well deserved) criticism that decision has received in order to strike down progressive tax legislation.
Cornell law professor Michael C. Dorf discusses the double jeopardy question raised in Gamble v. United States, in which the US Supreme Court heard oral arguments last week, and explains how the extraordinary nature of the Trump presidency should inform judicial decision making. Building upon a point made in a 1985 Columbia Law Review article by Professor Vincent Blasi, Dorf argues that judges construing the Constitution and other legal texts in perilous times such as these should keep in mind that the rules they adopt will also operate in normal times.
GW law professor and economist Neil H. Buchanan continues his series of columns considering how much damage the US Supreme Court will inflict after Justice Anthony Kennedy’s retirement. Drawing upon the nation’s experience with a conservative Court during the Lochner era, Buchanan predicts that one of the most consequential results of Republicans’ theft of a Supreme Court seat could be to seriously undermine one or more of Social Security, Medicare, and Medicaid.
Cornell law professor Michael C. Dorf comments on the announcement that retired Supreme Court Justice Sandra Day O’Connor would be withdrawing from public life and explains how, ironically, the exit of President Ronald Reagan’s Supreme Court nominees is giving rise to what could be called the Reagan Court. Dorf describes Reagan’s successes and failures with respect to shaping the Court and explains why only now, with its present composition, the Court may actually be poised to further Reagan’s agenda.
Cornell law professor Michael C. Dorf anticipates the possible next steps in the federal government’s lawsuit against California over the state’s new law mandating net neutrality. Dorf explains why, if conservative scholars and Supreme Court justices succeed in what seems to be their goal of weakening federal regulatory agencies, that could ironically be a boon to net neutrality and to government regulation more broadly.
GW Law professor and economist Neil H. Buchanan writes a letter that Supreme Court nominee Brett Kavanaugh could have written (but didn’t) in response to allegations that he sexually assaulted and attempted to rape a 15-year-old girl when he was a 17-year-old high school student. Using a fictional letter as a rhetorical device, Buchanan points out that Kavanaugh could have acknowledged that he, like anyone who has ever drunk to excess, does not recall exactly what he did or did not do while drunk, particularly on the night in question, but instead, Kavanaugh flatly denied that the allegations could be true. Buchanan argues that Kavanaugh’s response to the allegations demonstrates that he does not belong on the US Supreme Court.
John W. Dean, former White House counsel to President Richard Nixon, shares the statement he made to the Senate Judiciary Committee on September 7, 2018, during the confirmation hearings of Judge Brett Kavanaugh. Dean also argues that Judge Kavanaugh’s denials of lying under oath in his earlier 2004 and 2006 confirmation proceedings, and the fact that he must now lie under oath again to get confirmed to the Supreme Court, have disqualified him for the job.
Cornell law professor Michael C. Dorf comments on the recently publicized memorandum Brett Kavanaugh wrote in 1998 in the course of his work for Independent Counsel Kenneth Starr, who was conducting the investigation of President Bill Clinton. Dorf points out that the sexually explicit questions Kavanaugh proposed in his memo should have been ruled inadmissible under applicable procedural rules. Inspired by Kavanaugh’s own line of questioning, Dorf concludes by proposing a question that he calls upon a senator to ask Judge Kavanaugh during his nomination hearing.
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.
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.
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.
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.