Cornell University law professor Michael C. Dorf comments on a case before the U.S. Supreme Court that presents the issue whether and when a criminal defendant should pay with his life for an error made by his lawyer. Dorf explains the facts behind the case as well as the relevant legal precedents. He argues that Davila, the criminal defendant in this case, might convincingly argue that his first real opportunity to complain about the ineffectiveness of counsel on direct appeal is in a state habeas proceeding.
Cornell University law professor Michael C. Dorf explains why a group of legislators in Ohio recently voted to adopt a law that prohibits abortion of any fetus with a “detectable heartbeat”—around six weeks after conception—in clear violation of the U.S. Supreme Court’s 1973 holding in Roe v. Wade. Dorf describes what a “Trump Court” might do (and what it might not do) with respect to this Ohio law and others like it.
SMU Dedman School of Law professor Joanna L. Grossman comments on some of the parentage cases that have arisen since the U.S. Supreme Court decided in Obergefell v. Hodges that same-sex couples have a constitutional right to marry. Grossman describes the patchwork of cases that generally trend toward greater recognition of same-sex co-parents.
Cornell University law professor Michael C. Dorf discusses Justice Ruth Bader Ginsburg’s recent public criticism (which she has since retracted) of San Francisco 49ers quarterback Colin Kaepernick for his protesting against police brutality and racial oppression by kneeling during the playing of the national anthem. Dorf distinguishes criticism ex cathedra from criticism given while off the bench and concludes that while Justice Ginsburg was within her right to speak her mind, she was also correct to subsequently take back her comments.
University of Illinois Law dean and law professor Vikram David Amar comments on a case in which the Supreme Court heard oral arguments this week. In that case—Manuel v. Joliet—the Court will consider whether an individual’s Fourth Amendment right against unreasonable seizure continues after an indictment has issued, thereby allowing a malicious prosecution claim based on the Fourth Amendment. Amar argues that the case highlights some unusual features of Supreme Court practice, as well as some important aspects of constitutional law.
Former counsel to President Nixon, John W. Dean argues that comparisons between former Virginia Governor Robert McDonnell and Democratic presidential candidate Hillary Clinton are inapt. Dean points out several ways in which Hillary’s behavior did not rise even to the level of that of McDonnell, and the U.S. Supreme Court found that even the latter did not support conviction.
Cornell University law professor Michael C. Dorf comments on Justice Stephen Breyer’s use of a “courtesy fifth vote” to stay lower court rulings that would have allowed a trans student to use the restroom corresponding to his gender identity. Dorf explains the origin and history of the “courtesy” vote in the U.S. Supreme Court and argues that Justice Breyer’s attempt to invoke and expand it is inappropriate in this particular context.
Cornell University law professor Sherry F. Colb comments on the U.S. Supreme Court’s recent decision in Birchfield v. North Dakota, in which the Court held that states may criminalize the refusal to take a breathalyzer test but may not criminalize the refusal to take a blood test, absent a warrant, as an ordinary incident of an arrest for driving while impaired. Colb explains why the Court distinguished the two types of tests and argues that the decision effectively balances competing interests in public safety and individual privacy.
SMU Dedman School of Law Professor Joanna Grossman comments on the U.S. Supreme Court’s recent decision in Whole Woman’s Health v. Hellerstedt, in which the Court struck down certain restrictions on abortion clinics that imposed an undue burden on women’s constitutional right of access to abortion. Grossman describes the history of abortion access in the United States and how the Court’s decision in Whole Woman’s Health fits within that history.
Dean and law professor at Illinois Law, Vikram David Amar comments on Justice Anthony Kennedy’s majority opinion last week in Fisher v. Texas, where the U.S. Supreme Court upheld the part of the University of Texas undergraduate admissions policy that formally takes the race of individual applicants into account in admitting a portion of the entering freshman class. Amar praises the opinion for being more forthright than other majority opinions of the Court in this area of law, but he expresses concern that in some respects Justice Kennedy’s language may actually obfuscate the legal doctrine at issue.
John W. Dean, former counsel to President Nixon, explains the significance of the U.S. Supreme Court’s equal division in the immigration case United States v. Texas, which involved a challenge to the Obama administration’s sweeping immigration policy. Dean argues that the Court is effectively punting the political question of the immigration policy to the winner of the 2016 presidential election.
Cornell University law professor Michael C. Dorf comments on the procedural issues the U.S. Supreme Court recently addressed in the Texas abortion case, Whole Woman’s Health v. Hellerstedt. Dorf explains why the majority’s reasoning on the procedural issues is reasonable (and in his view, correct), notwithstanding the criticism by the dissent.
Cornell University law professor Sherry F. Colb discusses the U.S. Supreme Court’s recent decision in Utah v. Strieff, holding that evidence found in that case as a result of a Fourth Amendment violation was not the direct consequence of the violation and was therefore properly admitted into evidence against the defendant under the attenuation doctrine. Colb explains how one throwaway line in the opinion, if taken to its logical conclusion, could potentially spell the death of the exclusionary rule.
Cornell University law professor Sherry F. Colb considers the changing meaning of the U.S. Supreme Court’s opinion in Miller v. Alabama, which held that mandatory life sentences without the possibility of parole. Colb discusses specifically the Court’s decision earlier this year in Montgomery v. Lousiana, which held that Miller must be applied retroactively on state collateral review.
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.
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.
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.
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.
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.
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.