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.
Guest columnist and former US Congressman Brad Miller argues in favor of limits on the president’s power to pardon criminal contempt of court. Miller describes two US Supreme Court precedents on point and explains why circumstances today are radically different from what the Court in those decisions envisioned.
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.
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.
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.
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.
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.
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.
Cornell University law professor Michael C. Dorf comments on a recent decision by the U.S. Supreme Court on the heritability of citizenship and explains why the decision might have implications for other immigration issues, such as the “Muslim ban” executive order. Dorf argues that the precedents the Court had to distinguish to reach its conclusion might give some insight into whether and how it might defer to other political branches on immigration issues.
Guest columnists Antonio G. Sepulveda, Henrique Rangel, and Igor De Lazari comment on a recent decision by the U.S. Supreme Court that a New York law prohibiting merchants from imposing a surcharge for payment by credit card constitutes a regulation of speech, and they compare the Court’s treatment of the law as regulating speech with Brazil’s historic treatment of similar laws in that country as protecting consumers.
Cornell University law professor Sherry F. Colb considers one recent instance in which the U.S. Supreme Court endorsed a standard because it was factually more accurate than a prior standard, and several other instances in which the Court has done the opposite. Colb points out that, unfortunately, the law often seeks facts that facilitate a desired outcome rather than facts a more just or correct outcome.
Cornell University law professor Michael C. Dorf explains the significance of the U.S. Supreme Court’s recent decision regarding New York credit card surcharge laws as free speech. Dorf argues that the decision reflects an alarming trend of the Roberts Court to agree to recognize challenges to economic regulations on free speech grounds.
Cornell University law professor Sherry F. Colb comments on a recent decision in which the U.S. Supreme Court held that a juror’s use of racial stereotypes to vote for conviction may be used to invalidate the verdict, despite evidentiary rules that otherwise prohibit the use of juror testimony to challenge a verdict. Colb argues that the Supreme Court should have either extended the Sixth Amendment exception to cover other types of juror misconduct, or repealed the rule that prohibits the use of post-verdict juror testimony to impeach a verdict.
Cornell University law professor Michael C. Dorf explains the value of the confirmation hearing of Supreme Court nominee Neil Gorsuch, despite the tradition in such hearings of the nominee evading answering questions about the most divisive legal issues of the day. Dorf argues that the Gorsuch hearing provides a unique opportunity for bipartisan repudiation of President Trump’s irresponsible attacks on the judiciary.
Cornell University law professor Sherry F. Colb examines the how ineffective assistance of counsel and equal protection interact in cases involving race to produce results different from what might result from similar cases not involving race. Specifically, Colb looks at whether the U.S. Supreme Court’s conclusion of ineffective assistance of counsel in Buck v. Davis would have been different if the issue of race had not been involved.
Cornell University law professor Michael Dorf argues that in some contexts, consideration of states’ rights is relevant to the interpretation of federal statutes, but in other contexts—including the federal lawsuit over a transgender boy’s access to a boys’ restroom at school—principles of federalism are outweighed by other considerations. Dorf provides three examples of instances where federalism should play a role in the interpretation of federal statutes, and he explains why the transgender bathroom case differs from those instances.
Chapman University, Fowler School of Law, professor Ronald D. Rotunda explains the legal precedent behind the executive’s power to restrict visas for non-U.S. citizens to enter the United States. Rotunda points out that the recent opinion by the U.S. Court of Appeals for the Ninth Circuit fails to mention almost any of the precedential cases on point when it struck down President Trump’s executive order limiting immigration.
University of Illinois Law dean and professor Vikram David Amar provides answers to some common questions about the Trump Administration from a constitutional perspective. Specifically, Amar addresses what is a constitutional crisis and whether we are approaching one, what the worst-case constitutional scenario might look like, how state and local governments can resist federal government overreach, to what extent executive criticism of the judiciary has a chilling effect, and what topics are fair game in the confirmation hearings of Judge Neil Gorsuch.
Cornell University law professor Michael C. Dorf discusses the distinctive position taken by Supreme Court nominee Neil Gorsuch with respect to the so-called Chevron doctrine, under which courts defer to reasonable agency interpretations of ambiguous federal statutes. Dorf explains why Judge Gorsuch’s quest to end judicial deference to agencies not only contrasts with Justice Scalia’s position on the issue, but it is also erroneous and based on a misconception of how Chevron works.
John W. Dean, former counsel to President Nixon, converses with author David Dorsen about whether President Trump’s pick for the U.S. Supreme Court, Judge Neil Gorsuch, is going to be ideologically consistent with the late Justice Antonin Scalia, whose seat Gorsuch would fill. Led by Dean’s questions, Dorsen explains that Scalia was not as across-the-board conservative as many thought him to be, and Gorsuch may not be either, at least not on topics such as trial by jury and double jeopardy.