Tag Archives: SCOTUS

Prisoner Case Underscores Justice Scalia’s Legacy

Cornell University law professor Michael Dorf discusses a recent unanimous decision by the U.S. Supreme Court that illustrates the lasting impact Justice Scalia had on the Court’s approach to statutory interpretation. Dorf describes the shift from purposivism to textually constrained purposivism over the past half century, and explains how they differ from the textualism Justice Scalia espoused.

The Fifth Justice

Chapman University law professor Ronald Rotunda describes some significant changes in the law that could result from the next Supreme Court justice being appointed by a Democratic president. Rotunda looks at a number of seminal cases that were decided 5-4 that seem likely be overturned in such an event.

Lessons Learned from this Term’s Legislative Districting Decisions, Especially the Harris Case from Arizona

Dean and law professor at Illinois Law, Vikram David Amar describes some of the takeaway points from the U.S. Supreme Court’s decisions on legislative districting, particularly that in Harris v. Arizona Independent Redistricting Commission. Amar points out that the unexpected death of Justice Scalia in the middle of the term affects at least the reasoning—and perhaps the outcome—of this and many other cases.

Discrimination & Criminal Justice in the 21st Century

Cornell University law professor Joseph Margulies comments on last week’s decision by the U.S. Supreme Court in Foster v. Chatman, in which the Court considered whether a prosecutor’s use of peremptory challenges to remove all eligible black jurors constituted impermissible race discrimination. Margulies argues that true criminal justice reform requires us to acknowledge the pervasiveness of implicit bias in society and let go of the idea that the behavior is an individual wrong by one person against another, and reconceive it as a social wrong by a person against the community.

RFRA, Zubik v. Burwell, and the Do No Harm Act

Cardozo Law professor Marci Hamilton comments on the recent decision by the U.S. Supreme Court in Zubik v. Burwell, in which the Court via a per curiam opinion declined to interpret the Religious Freedom Restoration Act (RFRA) as applied to the Affordable Care Act. Hamilton also describes the Do No Harm Act, which is a bill proposed this week that attempts to carve out of RFRA some of its worst incentives and inclinations. While Hamilton argues that RFRA should be repealed outright, she acknowledges that the Do No Harm Act is absolutely a step in the right direction.

Supreme Court Requires “Concrete” Injury for Standing

Cornell University law professor Michael C. Dorf comments on the recent decision by the U.S. Supreme Court in Spokeo, Inc. v. Robins, in which the Court unremarkably affirmed its position that a plaintiff in federal court must have suffered (or be in danger of imminently suffering) a “concrete and particularized injury.” Dorf explains why, in cases such as Spokeo that involve one private party suing another, the Court should abandon the concreteness requirement of judicial standing.

When Illegal Stops Lead to the Discovery of Outstanding Warrants: Utah v. Strieff

Cornell University law professor Sherry F. Colb comments on a case currently before the U.S. Supreme Court, in which the Court will decide whether evidence located during a search incident to arrest after an unlawful stop will be admissible in evidence against the arrestee. Colb discusses this and also the broader question of the future role of the exclusionary rule in the law of the Fourth Amendment.

The U.S. Supreme Court Evaluates Criminal Penalties for Refusing Blood/Breath Alcohol Content Tests

Cornell University law professor Sherry Colb comments on a case on which the the U.S. Supreme Court recently heard oral argument that presents the question whether a state law may, absent a search warrant, attach criminal penalties to a DUI suspect’s refusal to undergo a chemical test of the suspect’s blood, urine, or breath to determine alcohol concentration. Colb predicts that the Court will decide that any test of a person’s internal state—whether through a blood draw, a breathalyzer, or a urine sample—requires a search warrant in the absence of exigent circumstances.

Are Long Death Penalty Delays Unconstitutional?

Cornell University law professor Michael Dorf considers whether long delays in carrying out capital punishment render the practice unconstitutional. Dorf responds specifically to an argument put forth by the late Justice Scalia that execution delays are chiefly the result of the extensive procedures that the Court’s liberals have required for carrying out an execution.

What Might a Mediator Do for the Parties to the Contraceptive Case in the Supreme Court?

Cornell University law professor Sherry Colb considers how the U.S. Supreme Court, acting as a mediator, might approach the parties in Zubik v. Burwell, a case currently before the Court in which the Court made the unusual request of supplemental briefing from the parties. Colb explains both the capabilities and limitations of transformative mediation as a method of resolving disputes.

Prosecutorial Discretion: The Dog That Didn’t Bark in the Immigration Oral Argument—Yet

Cornell University law professor Michael C. Dorf comments on the recent oral argument before the U.S. Supreme Court in United States v. Texas, a case involving a challenge to the Obama Administration’s deferred action immigration policy. Dorf points out that underneath the procedural questions actually before the Court in that case is a crucial unasked question: What is the scope of the president’s prosecutorial discretion not to enforce laws duly enacted by Congress?

Supreme Court Convenes a Settlement Conference

Cornell University law professor Michael Dorf comments on a recent unusual order by the U.S. Supreme Court asking for supplemental briefing from the parties to the latest religious challenge to Obamacare. In contrast with other commentators who have described the order as “puzzling” or “baffling,” Dorf explains how the Court’s order resembles something federal district courts do on a routine basis: facilitate settlement of the dispute.

Alabama: The U.S. Constitution Applies to You, Too

Hofstra University law professor Joanna Grossman comments on a recent per curiam opinion by the U.S. Supreme Court in which it instructed the Alabama Supreme Court to obey the U.S. Constitution and give full effect to a lesbian couple’s adoption decree from Georgia. Grossman describes the facts leading up to the case and explains why the High Court ruled firmly as it did, and why the Alabama court was incorrect.

A Specific Proposal That Helps Give Us a Sense of What Getting Rid of Citizens United Might Entail

Illinois Law dean and professor Vikram David Amar examines California’s Proposition 49—which seeks the voters’ approval for the California legislature to ratify an amendment to the federal Constitution to overturn the U.S. Supreme Court’s 2010 decision in Citizens United v. FEC—in order to shine light on what might be required to overturn the decision on a federal level. Amar argues that Proposition 49 highlights just how difficult it would be to craft a workable constitutional amendment to overturn Citizens United.

The Grave Risks of the Senate Republicans’ Stated Refusal to Process any Supreme Court Nominee President Obama Sends Them

Illinois Law dean and professor Vikram David Amar describes some of the risks Senate Republicans will face if they refuse to process any Supreme Court nominee that President Obama sends them, as they have claimed they would. Among these risks, Amar argues, are the possibility that a President Hillary Clinton might appoint Obama to the Supreme Court, that the Democrats could take over the Senate and approve a nominee that a Republican-controlled Senate would not have approved, or even that Justices Breyer and Ginsburg could retire under a Democrat-controlled Senate, giving President Obama three places on the Court to fill with liberal justices.

Senate Republicans Offer Laughable Reasons for Refusing to Confirm an Obama Supreme Court Nominee

Cornell University law professor Michael Dorf explains why Republicans’ claims that President Obama lacks democratic legitimacy in appointing a successor to the late Justice Antonin Scalia. Dorf points out that the reasons offered thus far for refusing to confirm an Obama nominee seem to imply that originalism/formalism can be validated or invalidated by popular approval, even absent a constitutional amendment.

In Defense of Justice Scalia on Religious Liberty and Smith

In honor of the recently deceased Supreme Court Justice Antonin Scalia, Cardozo Law professor Marci Hamilton discusses the Court’s decision in Employment Div. v. Smith, in which Justice Scalia wrote for the majority holding that a law is constitutional under the Free Exercise Clause of the First Amendment if it is facially neutral and generally applied. Hamilton lauds the decision as striking the right balance between liberty and harm, and between religious diversity and religious tyranny.

Course Correction: Young v. United Parcel Service Makes Courts Focus on Right Issues, but Also Reveals Limits of PDA

Hofstra University law professor Joanna Grossman discusses the effect that the U.S. Supreme Court’s decision in Young v. United Parcel Service has had on cases arising under the Pregnancy Discrimination Act (PDA), as well as the limitations of that decision. Grossman argues that while the decision helped give effect to the intended purpose of the PDA, it did not and could not expand the scope of the statute, which is what is now needed to adequately protect pregnant workers.

Sticking Up (Kind of) for a(n Idaho) State Court Slapped Down by the U.S. Supremes

Vikram David Amar—dean and law professor at the University of Illinois College of Law—comments on a summary reversal by the U.S. Supreme Court of a decision by the Idaho Supreme Court. While Amar agrees with the Court that the Idaho court erred in reaching its decision, but he argues that the Idaho jurists were not guilty of the particular stupidity or defiance the Supreme Court imputed to them.

Have Democrats Rediscovered Unions Too Late?

Neil H. Buchanan, a law professor and economist at George Washington University, comments on the recent trend of mainstream liberal opinion makers to express public support for labor unions. Buchanan explains the tumultuous history of liberals and labor unions, and he wonders whether this overdue support is too little too late, in light of a case currently before the U.S. Supreme Court.

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 one of the country’s leading church-state scholars and the Fox Professor of Pra... more

David S. Kemp
David S. Kemp

David S. Kemp is an attorney and managing editor at Justia. He received his B.A. in Psychology from... 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

Ronald D. Rotunda
Ronald D. Rotunda

Ronald D. Rotunda is the Doy & Dee Henley Chair and Distinguished Professor of Jurisprudence, at... more