Tag Archives: SCOTUS

Whose Tax Is This?

Guest columnists Igor De Lazari, Antonio Sepulveda, and Judge Sergio Dias describe how Brazil recently addressed an issue currently before the US Supreme Court-an issue of when (and whether) a state may collect taxes on goods that originate out of state. De Lazari, Sepulveda, and Dias suggest that perhaps the issue is better resolved, as it was in Brazil, through the legislative process rather than by court decision, so as to ease what is likely to be an abrupt transition.

Mass Shootings and the Supreme Court

Cornell University law professor Michael C. Dorf describes the underappreciated role of the US Supreme Court in shaping public opinion and discussion of gun regulations. Specifically, Dorf explains that the Court's seminal decisions in District of Columbia v. Heller and McDonald v. City of Chicago have symbolic importance beyond their literal holdings, giving gun rights proponents strong rhetoric, though not strong legal basis, for an absolutist position.

Do Defendants Have the Right to Make Bad Decisions?

Cornell University law professor Sherry F. Colb comments on the case before the US Supreme Court, McCoy v. Louisiana, in which the Court will decide whether a criminal defendant has a Sixth Amendment right to stop his attorney from announcing to a jury that his client killed the victims for whose murder he is standing trial. Colb considers the argument that the lawyer's behavior constituted deficient performance counsel and argues that in that case, the defendant's conviction should be reversed and remanded for a new trial.

The Meaning of Trump’s Plan to Keep Gitmo Open

Cornell University Michael C. Dorf explains the symbolism of President Donald Trump's announcement during his State of the Union address that he would be keeping the detention facility at Guantánamo Bay open. Dorf points out that despite the extraordinarily high cost of keeping the facility open, Republicans support its continued operation simply as repudiation of President Obama, who wanted to close it. Dorf points out that Republicans' opposition to closing Gitmo during the Obama presidency also jibed with the not-so-veiled racism of many Republicans who questioned Obama's citizenship and commitment to the US (disregarding the fact that President Bush actually released more Gitmo detainees than President Obama did).

Travel Ban 3.0 Heads to the Supreme Court: Win or Lose the Battle, the Resistance is Winning the War

Cornell University law professor Michael C. Dorf argues that regardless of the outcome of President Trump's "Travel Ban 3.0" before the US Supreme Court, the litigation challenging the Travel Ban should be regarded as a victory over Trump's effort to rule by diktat. In support of this argument, Dorf points out that the litigation makes it abundantly clear to the American people that Trump remains every ounce the same vile and petty would-be tyrant that he appeared on the campaign trail.

Why Justice Gorsuch May Have Avoided the Word “Privacy” at the Carpenter Oral Argument

Cornell University law professor Sherry F. Colb comments on the recent oral argument in Carpenter v. United States, in which the US Supreme Court will consider whether the Fourth Amendment requires the government to obtain a warrant before demanding that a cell phone service provider reveal location data about a target’s phone for a certain period of time. Colb notes that during oral argument, the Court’s newest justice, Justice Neil Gorsuch, conspicuously avoided using the word “privacy”—a choice that Colb suggests reflects his views on substantive due process and the rights that flow from that constitutional principle, such as abortion and physician assistance in dying.

Liberty and Equality Sometimes Require Tragic Choices, Just Not in Masterpiece Cakeshop

Cornell University law professor Michael C. Dorf explains why the Masterpiece Cakeshop case before the US Supreme Court—in which the Court will decide whether a baker may refuse to serve a gay couple based on his religious beliefs—does not present a difficult choice between liberty and equality. Rather, Dorf points out, the baker’s free speech claim in this case should be relatively easy to reject because a cake without an articulate message on it does not constitute the “speech” of the person who made it.

The Masterpiece Cakeshop Oral Argument and the Fatal Flaw in the Bakers’ Free Speech Argument

Marci A. Hamilton, a professor and resident senior fellow in the Fox Leadership Program at the University of Pennsylvania, reacts to the oral argument in Masterpiece Cakeshop v. Colorado Civil Rights Comm’n, in which the Supreme Court will decide whether a Colorado baker may refuse to serve a same-sex couple on the basis that doing so would violate his religious beliefs. Hamilton argues that lawyer for the baker, as well as the solicitor general arguing in support of the baker’s position in the case, took the nonsensical position that the cake serves as the baker’s speech in the couple’s private ceremony. Hamilton points out that the cake is actually the couple’s expression to each other and to those present at the ceremony, just as any other product is simply a product imbued only with the meaning intended by its purchaser.

The Supreme Court Needs to Clarify When District Court Injunctions Blocking Federal Policies Can Extend Beyond the Actual Plaintiffs in a Case

Illinois Law dean and professor Vikram David Amar comments on the increasingly frequent practice of federal district courts issuing injunctions that extend relief beyond the plaintiffs in the case. Amar describes the problems with this practice and calls upon the US Supreme Court to clarify the doctrine of when nationwide (or global) injunctions by federal district courts are permissible and when they are not.

Can Congress Ban Bump Stocks?

Cornell University law professor Michael C. Dorf explains why, if Congress wants to ban or further regulated the sale of “bump stocks,” it should act quickly or risk missing the window in which regulation is possible. Dorf points out that the test the Supreme Court uses for whether weapons count as “arms” protected by the Second Amendment is whether they are in “common use,” not whether they are “dangerous and unusual weapons.” Dorf argues that so long as bump stocks remain legal, people can accumulate them, and if enough people do that before they are banned, there could be so many in circulation as to qualify as in common use, thereby falling within the scope of Second Amendment protection.

The US Supreme Court Considers the Scope of the Automobile Exception

Cornell University law professor Sherry F. Colb comments on a case the US Supreme Court recently agreed to hear regarding the scope of the automobile exception to the Fourth Amendment warrant requirement. Colb explains the facts leading up to the controversy, the arguments on both sides, and the unusual nature of the case. Colb points out that the Court was likely motivated to hear the case to resolve a question the case does not even squarely present, namely whether the presence of a car in a driveway is a reason not to apply the automobile exception.

The Fall of Seriatim Opinions and the Rise of the Supreme Court

Chapman University Fowler School of Law professor Ronald D. Rotunda describes the historic practice by the US Supreme Court of issuing seriatim opinions, where each justice wrote his own separate opinion, rather than the current practice of issuing an Opinion of the Court. Rotunda describes the role of Chief Justice John Marshall in changing the practice, which resulted in the most powerful Court in the world.

How First Amendment Speech Doctrine Ought to Be Created and Applied in the Colorado Baker/Gay Wedding Dispute at the Supreme Court

Illinois Law dean Vikram David Amar and UC Davis Law emeritus professor Alan E. Brownstein point out that the US Supreme Court has no comprehensive doctrine on compelled speech under the First Amendment, especially as compared to its very nuanced doctrine on suppression of speech. Amar and Brownstein identify core elements that should comprise a comprehensive doctrine and call upon the Supreme Court to adopt similar guidelines when it decides an upcoming case, Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, in which a baker challenges a Colorado public accommodations law on First Amendment grounds, citing compelled speech. Without taking a position on how this dispute should be resolved as a matter of social policy, Amar and Brownstein argue that the doctrinal framework they describe does not support rigorous review in this case.

Some Aspects of the Matal v. Tam Trademark Case That Would Have Benefitted from More Explanation

Illinois Law dean and professor Vikram David Amar comments on the U.S. Supreme Court’s recent decision in Matal v. Tam, in which the Court struck down as unconstitutional part of the federal trademark registration statute that prohibits registration of disparaging marks. Amar points out that the Court’s decision in Matal is difficult to square with its reasoning and holding in Walker v. Texas Division, Sons of Confederate Soldiers, a case from two years ago in which the Court upheld Texas’s refusal to approve a specialty license plate design that made extensive use of the Confederate flag image.

Trinity Lutheran Church v. Comer at the Supreme Court: Be Careful What They Wish For

Marci A. Hamilton, a leading church/state scholar and Fox Distinguished Scholar in the Fox Leadership Program at the University of Pennsylvania, comments on the U.S. Supreme Court’s recent decision in Trinity Lutheran Church v. Comer, which Hamilton argues reflects a common-sense application of existing jurisprudence on the Free Exercise Clause. Hamilton laments that legislators are not acting with the same level of common sense as they develop and interpret dangerous Religious Freedom Restoration Acts.

A Summary and Analysis of the Nixon Tapes Case That Still Governs Important Aspects of “Executive Privilege” Today

Illinois Law dean and professor Vikram David Amar explains the U.S. Supreme Court’s seminal decision in United States v. Nixon and explains how it might affect the Trump administration in light of various ongoing investigations. Amar provides a brief summary of the Court’s holding in that case, calls attention to some weaknesses in its reasoning, and anticipates what issues might present themselves again.

Summarily Reversed: Arkansas’s Attempt to Flout Obergefell v. Hodges Is Blocked

SMU Dedman School of Law professor Joanna L. Grossman comments on the U.S. Supreme Court’s recent summary reversal of the Arkansas Supreme Court’s ruling that upheld that state’s attempt to avoid the marriage equality decision in Obergefell v. Hodges. Grossman describes the ways in which some states, such as Arkansas in this case, have tried to avoid, subvert, or limit Obergefell’s holding, and she discusses the Supreme Court’s simple yet clear response, as well as the significance of Justice Gorsuch’s dissent from the per curiam opinion.

Trump’s Travel Ban Heads to the Supreme Court

Cornell University law professor Michael C. Dorf discusses possible implications and outcomes of the Supreme Court’s recent announcement that it will review the appeals court decisions invalidating President Trump’s travel ban executive order. Dorf explains the issue of mootness and also explains how one might predict how the Court will rule on the merits of the case.

Policing Sexism at the Border: The Supreme Court’s Decision in Sessions v. Morales-Santana

SMU Dedman School of Law professor Joanna L. Grossman comments on the U.S. Supreme Court’s recent decision in Sessions v. Morales-Santana, in which the Court held unconstitutional a federal law imposing different physical presence requirements on mothers as compared to fathers. Grossman argues that the law at issue epitomized sex discrimination and was rooted in archaic generalizations about parents based on gender.

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 Professor of Law and Charles Evans Hughes Scholar at Cornell University. Colb tea... 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