UC Davis Law professor Vikram David Amar expresses concern over the quality of the Supreme Court’s oral argument in Trump v. Anderson, suggesting that the Justices’ questions failed to adequately address the complexities of the case and the constitutional principles at stake, particularly regarding the electoral college and interstate federalism. Professor Amar critiques the Court’s understanding of the electoral college system, arguing that the Justices’ apprehensions about the potential consequences of their decision overlook the inherent flexibility states have in appointing electors—a flexibility underscored by originalist constitutional interpretations and past precedents.
Dean Falvy, a lecturer at the University of Washington School of Law in Seattle, argues that the U.S. Supreme Court should uphold the decisions of the Colorado and Maine courts that disqualified Donald Trump from running for President under Section 3 of the 14th Amendment based on his role in the January 6, 2021 attack on the U.S. Capitol. Mr. Falvy identifies several ways that the Court could rationalize putting Trump back on the ballot and explains the legal and consequential problems with each. In particular, Mr. Falvy criticizes the superficially appealing “let the people decide” line of thought, pointing out that it is actually highly undemocratic and dangerous; indeed, such dictators as Louis-Napoléon Bonaparte in France, Adolf Hitler in Germany, and Hugo Chavez in Venezuela, each launched a failed coup d’état, endured a short stint in jail, and returned to win power through elections.
Dean Falvy, a lecturer at the University of Washington School of Law in Seattle, examines the constitutional and political implications of a Colorado Supreme Court ruling that disqualified Donald Trump from running for president in 2024, based on his involvement in the January 6, 2021 attack on the U.S. Capitol. Mr. Falvy discusses the legal and factual issues that the U.S. Supreme Court will have to resolve in the case, and the potential impact of its decision on the country's future.
Amherst professor Austin Sarat argues that the Supreme Court should use the case of Richard Glossip, a death row inmate who claims actual innocence, to declare that the Constitution forbids executing the innocent. Professor Sarat points out the various procedural problems and prosecutorial misconduct in Glossip’s case, as well as the Supreme Court’s precedents on actual innocence claims—which support his argument for addressing this fundamental issue of justice.
Cornell Law professor Michael C. Dorf points out that the U.S. Supreme Court faces critical decisions in two cases involving former President Donald Trump: one regarding his claim of absolute immunity against charges for his role in attempting to overturn the 2020 election, and the other concerning his eligibility for the Presidency under Section 3 of the Fourteenth Amendment. Professor Dorf argues that despite Trump’s legal team arguing for more time due to the complexity of the immunity case, the Court should expedite its review in both cases, given the urgency of presidential primaries and the weak nature of Trump’s claims, especially against the well-founded argument that he is ineligible under the Fourteenth Amendment due to insurrectionist activities.
Cornell Law professor Michael C. Dorf discusses the Supreme Court’s refusal to hear a case challenging Washington State’s ban on conversion therapy, Tingley v. Ferguson, and specifically the implications of the dissent from Justices Clarence Thomas and Samuel Alito. Professor Dorf explains that their dissenting opinion demonstrates their willingness to invalidate such bans based on free speech, a stance that could undermine the regulation of medical practices. Professor Dorf points out that while a circuit split exists on the legality of conversion therapy bans, the broader concern is the potential impact of the Justices’ views on medical regulation, including recent decisions regarding access to abortion medication like mifepristone.
UNLV Boyd School of Law professor Leslie C. Griffin recounts her experience reading At the ALTAR of the Appellate Gods: Arguing before the US Supreme Court by Lisa Sarnoff Gochman. Amidst a tragic backdrop of recent violence at UNLV, Professor Griffin reflects on Gochman’s book, which provides a human perspective on appellate law through her experience arguing in the notable Supreme Court case, Apprendi v. New Jersey. As Professor Griffin describes, Gochman’s narrative highlights the challenges and intricacies of presenting a case before the Supreme Court, offering insights into the legal process and the personal journey of an appellate lawyer.
Lauren Stiller Rikleen reflects on the legacy of Justice Sandra Day O’Connor, highlighting her respect for judicial restraint and precedent, particularly in cases regarding reproductive rights. Contrasting O’Connor’s approach with the current Supreme Court's inclination influenced by the Federalist Society, Ms. Rikleen suggests that the Court’s current Justices could benefit from O’Connor’s example of independence and commitment to precedent. She also discusses the shift in the Court’s composition and ideology following O’Connor's retirement, noting the increasing influence of the Federalist Society in shaping a judiciary more ideologically driven and less bound by precedent, as exemplified by recent decisions like the overturning of Roe v. Wade.
Cornell Law professor Michael C. Dorf comments on the pending U.S. Supreme Court case SEC v. Jarkesy, which questions the constitutionality of administrative law judges (ALJs) in the SEC and their role in enforcing securities laws. While Professor Dorf believes the Court should reject all three constitutional challenges presented in the case, he suggests that if the Court does rule against the government, the least disruptive outcome would be based on the removal issue rather than the Seventh Amendment or nondelegation claims.
Amherst professor Austin Sarat reflects on the Death Penalty Information Center’s year-end report, which highlights both progress in abolishing capital punishment in the U.S. and the Supreme Court’s reluctance to ensure fairness in death penalty cases. Professor Sarat argues that the Supreme Court’s diminishing role in scrutinizing death penalty cases and its tolerance for injustice in these matters may be contributing to growing public skepticism about the death penalty, evidenced by increasing support among lawmakers and the public for its repeal or limitation.
Amherst professor Austin Sarat argues that the U.S. Supreme Court’s decision in Students for Fair Admissions v. Harvard, which ended affirmative action in higher education, is the worst legal decision of 2023, setting back efforts to dismantle white privilege in the U.S. and resisting the construction of a more inclusive society. Professor Sarat explains why the decision is undemocratic, exacerbating racial inequities and closing pathways to power and prosperity for students of color, contrary to the aspirations of a genuinely inclusive and egalitarian democracy.
Cornell Law professor Michael C. Dorf argues that the Supreme Court’s new Code of Conduct, despite being a step towards addressing ethical concerns, is insufficient due to its lack of enforcement mechanisms and the Court’s history of questionable conduct. Professor Dorf suggests that, despite Justice Alito’s assertion to the contrary, Congress has the authority to impose stricter ethical rules on the Supreme Court and could even explore innovative solutions like a “pinch-hitter” system using retired Justices or federal appeals court judges to address recusal challenges.
UC Davis law professor Vikram David Amar discusses the upcoming Supreme Court case, Moore v. United States, which involves a tax issue concerning a husband and wife who are shareholders in a company located in India. Professor Amar argues in this column and in his amicus brief, which he co-authored with Professor Akhil Amar, that the tax in question is constitutional, drawing support largely from the Supreme Court’s 1796 case Hylton v. United States.
Cornell Law professor Michael C. Dorf discusses the effect and implications of Texas’s SB8 law and Missouri’s Second Amendment Preservation Act (SAPA) on federal law and the judiciary. Professor Dorf argues that both laws employ a strategy to circumvent federal court review, but suggests there may be growing recognition among Supreme Court Justices of the dangers posed by such laws, which seek to undermine federal authority and judicial review.
NYU Law professor Samuel Estreicher comments on the U.S. Supreme Court’s recent decision striking down the use of racial preferences in college admissions at Harvard and the University of North Carolina, creating uncertainty about the future of affirmative action in both higher education and employment. Professor Estreicher points out that while the Court opposed the “outright racial balancing” used by the universities, it left room for race-based “make whole” remedies in cases of proven intentional discrimination, raising questions about the permissible extent of race-based remediation and its applicability in various contexts, including employment.
Amherst professor Austin Sarat expresses deep concern about the current U.S. Supreme Court’s potential effects on the country, arguing that the Court appears to be moving in a decisively conservative direction on issues like religious freedom, abortion, and affirmative action. Professor Sarat also raises questions about the ethics and legitimacy of the Court, citing public approval ratings and noting upcoming cases on racial gerrymandering, gun regulation, and administrative authority that could have significant societal consequences.
Touro University, Jacob D. Fuchsberg Law Center, professors Rodger D. Citron and Laura A. Dooley discuss the U.S. Supreme Court’s unexpectedly divided decision in Mallory v. Norfolk Southern Railway Co. case, which addressed whether a corporation can be sued in a state where it has registered to do business but is not a citizen. Professors Citron and Dooley argue that the case is notable for the alignment of ideologically diverse justices and its potential to significantly alter the landscape regarding where plaintiffs can sue corporations, shedding light on the current Court’s approach to originalism and federalism in the context of personal jurisdiction.
Cornell Law professor Michael C. Dorf argues that while the recent departure of Stanford’s associate dean for Diversity, Equity, and Inclusion (DEI) is noteworthy, the broader issue is the legal status of diversity initiatives following the recent Supreme Court ruling in Students for Fair Admissions v. President and Fellows of Harvard College. Professor Dorf contends that despite the Court’s skepticism towards race-based affirmative action, DEI offices still have a legitimate role, albeit one that may need to adjust its approaches to promoting diversity and inclusion.
Cornell Law professor Michael C. Dorf responds to a recent Wall Street Journal “puff piece” on U.S. Supreme Court Justice Samuel Alito, arguing that, contrary to the op-ed authors’ assertion, Justice Alito’s purported commitment to textualism is disingenuous and that he finds ways (atextually, if needed) to vote consistently for ideologically conservative outcomes. Professor Dorf refutes Justice Alito’s claim that Congress lacks the authority to impose ethical standards on the Supreme Court, pointing out Congress’s historical role in shaping the Court and the existing ethics regulations that apply to the Justices.
Amherst professor Austin Sarat critiques U.S. Supreme Court Justice Clarence Thomas for his close relationships with conservative billionaires and the luxurious gifts and perks he’s received from them without proper disclosure, as recently reported by ProPublica. Drawing parallels to the case of Justice Abe Fortas, who resigned in the 1960s after a series of ethical missteps, Professor Sarat suggests that the current divisive political climate enables and even rewards ethically questionable behavior among leaders, as long as it aligns with tribal loyalties and partisan allegiances.
