In anticipation of the U.S. Supreme Court likely deciding soon to review a case presenting the question of the legitimacy of the “Independent State Legislature” (ISL), Illinois Law dean Vikram David Amar explains why the theory necessarily fails unless its proponents make up the meaning of Article II of the Constitution without regard to its words or historical context. Dean Amar argues that the notion of ISL does not work for Article I or Article II, but it certainly does not work for Article II under the textual approach employed by its proponents.

Amherst professor Austin Sarat comments on the recent decision by the U.S. Supreme Court in Shinn v. Ramirez, in which the Court held that federal judges may not intervene in state cases to protect the Sixth Amendment right to the effective assistance of counsel, even when there is evidence evidence that the condemned might be actually innocent. Professor Sarat points out that the decision demonstrates the conservative Justices’ prioritization of finality over justice and serves only to further erode confidence in and support for capital punishment in this country.

Amherst professor Austin Sarat comments on the uniquely problematic conduct of Supreme Court Justice Clarence Thomas and his wife Virginia (Ginni).

In light of the leaked Supreme Court opinion in Dobbs v. Jackson Women’s Health Org. and the resulting protests in front of the homes of some of the Justices, Cornell Law professor Michael C. Dorf considers where, if anywhere, protests against judicial decisions are appropriate. Professor Dorf notes that under current law, the First Amendment as currently construed by the Supreme Court seems to protect a right to peaceable protest near the home of a judge or Justice so long as: (a) the protesters merely pass by but do not linger at the home; and (b) they do so without the intent to intimidate. However, Professor Dorf also points out that such protest might not always be tactically prudent.

In light of the recently leaked draft of a majority opinion by Justice Samuel Alito that would overrule Roe v. Wade, Cornell Law professor Sherry F. Colb comments on the Mississippi law at issue, which lacks an exception for instances of rape incest. Professor Colb suggests that Justice Alito has been waiting to overrule Roe at least since the Supreme Court reversed his decision as an appeals court judge in Planned Parenthood v. Casey, thereby giving voice to his Catholic belief that a zygote could reasonably be characterized as an “unborn child.”

In this second of a series of columns, Illinois Law dean Vikram David Amar and professor Jason Mazzone describe the facts and law giving rise to Berger v. North Carolina State Conference of the NAACP, a North Carolina voter ID case pending before the U.S. Supreme Court. Dean Amar and Professor Mazzone argue that the case highlights the importance of the legal procedure of certification and suggest that if the Court’s decision falls back on the traditional model of singular executive-branch representation embraced by the federal system and that of other states, the North Carolina legislature will have only itself to blame.

In response to the leaked draft opinion by Justice Samuel Alito in Dobbs v. Jackson Women’s Health Org., Cornell Law professor Michael C. Dorf comments on the likely ramifications of the Supreme Court’s overruling Roe v. Wade, the seminal case recognizing the constitutional right to seek an abortion. Professor Dorf argues that the language and reasoning of the draft suggest that this emboldened Court with a super-majority of Republican appointees is also preparing to overrule Lawrence v. Texas (recognizing the right of consenting adults to engage in same-sex sexual conduct) and Obergefell v. Hodges (recognizing the right of same-sex couples to marry).

UNLV Boyd School of Law professor Leslie C. Griffin comments on Monday’s oral argument in Kennedy v. Bremerton School District, which presents a question about the intersection between the Free Exercise Clause, the Establishment Clause, and government speech jurisprudence. Professor Griffin describes how various Justices approached the case and what we might learn about how they are inclined to vote.

Former federal prosecutor Dennis Aftergut comments on three recent Supreme Court decisions in which Chief Justice John Roberts joined the dissent, demonstrating that he does not carry sway in decisions on central issues such as a woman’s right to choose, voting rights, or protecting the environment. Mr. Aftergut points out that how the Justices vote in the upcoming decision in Dobbs v. Jackson Women’s Health Organization will reveal whether the Roberts Court can preserve the core principles of judicial restraint in constitutional adjudication and stare decisis—or whether it is more appropriately called the “McConnell Court.”

In light of the recent Supreme Court confirmation hearing of Judge Ketanji Brown Jackson, Cornell Law professor Michael C. Dorf explains why judges across the ideological spectrum embrace the judicial philosophy of originalism. Professor Dorf points out that today’s version of originalism leaves judges and justices substantial room to make judgments based on their values.

Amherst professor Austin Sarat explains how the U.S. Supreme Court’s recent decision in Ramirez v. Collier demonstrates how the conservative Justices prioritize religious freedom over all other values, even speedy executions. Professor Sarat points out that the decision is just the latest waystation on the Court’s determined journey to put religion at the center of American life.

Cornell Law professor Michael C. Dorf comments on two cases the U.S. Supreme Court recently decided that involve the “state secrets privilege.” Professor Dorf argues that the cases demonstrate that the executive branch (regardless of whether the president is a Republican or a Democrat) will go as far as the courts allow with the public secrets privilege, so it falls to Congress to rein it in.

Cornell Law professor Michael C. Dorf argues that Chief Justice John Roberts is, perhaps surprisingly, on the left of the current Court partly because of the Court moving far to the right in recent years and partly because of Roberts’s evolution as a jurist. Professor Dorf explores why Roberts has shifted, noting that he seems simply to adhere to a principle that historically liberals, moderates, and conservatives all agreed upon: don’t lie about the law.

Amherst professor Austin Sarat comments on the U.S. Supreme Court’s recent decision to allow Alabama to execute Matthew Reeves, an intellectually disabled death row inmate, by lethal injection rather than by his preferred method of nitrogen hypoxia. Professor Sarat explains why giving death row inmates a choice over their “preferred” method of execution is perverse and argues that the words “humane” and “execution” do not belong in the same sentence, no matter what method is used.

In light of the news of Justice Stephen Breyer’s imminent retirement, Cornell Law professor Michael C. Dorf reflects on Justice Breyer’s career. Professor Dorf observes that Justice Breyer lacks a distinctive legacy largely for two reasons: (1) he was junior to O’Connor, Kennedy, and Ginsburg for their time on the Court together and thus did not get key liberal assignments, and (2) as a pragmatist and compromiser, his reasoning relied more on nuance than on bold strokes.

SMU Dedman School of Law professor Joanna L. Grossman describes the devastating short-term impact of eliminating federal constitutional protection for abortion which the U.S. Supreme Court seems likely to do imminently. Professor Grossman observes that even now, while constitutional protection for abortion exists, many pregnant women already face significant barriers to abortion care, reminding us that we need to work towards a future that is more protective and more equal rather than just trying to claw our way back to the bare minimum provided by Roe v. Wade.

Amherst professor Austin Sarat and former federal prosecutor Dennis Aftergut point out that in the U.S. Supreme Court’s recent decision in National Federation of Independent Businesses v. Department of Labor, the conservative majority continues the right-wing assault on knowledge and expertise. Professor Sarat and Mr. Aftergut argue that the conservative attack on regulatory agencies and the expertise they represent is a classic indicator of creeping totalitarianism—the blurring of the distinction between fact and fiction.

Cornell law professor Michael C. Dorf asks whether we can trust that Justice Neil Gorsuch—who was the sole Justice not to wear a mask during oral arguments last week—was unbiased in considering two challenges to the Biden administration’s vaccine mandates. Professor Dorf argues that Justice Gorsuch’s refusal to wear a mask indicates that he either does not believe the public health guidance or thinks he should be free to decide for himself whether to follow it—both of which possibilities undercut public confidence in the basis for his votes in the vaccine cases.

Cornell law professor Sherry F. Colb praises Ruth Marcus’s 2019 book, Supreme Ambition, about Brett Kavanaugh’s rise to power and the events that took place after Dr. Christine Blasey Ford accused him of sexual assault. Professor Colb notes that the book is engaging even for someone who closely followed the events as they occurred, and reflects on the trauma of living (and reliving) through that disillusioning period in our nation’s recent history.

Cornell law professor Michael C. Dorf explains why the concern expressed by Justice Sonia Sotomayor in her dissent in the Texas abortion case (Whole Woman’s Health v. Jackson) that other states will follow Texas’s example and employ “private bounty hunters” is well founded and legitimate.