Cornell law professor Michael C. Dorf comments on the third challenge to the Affordable Care Act (ACA) that has made it before the U.S. Supreme Court, and considers how the case will play in the upcoming Georgia runoff elections. Dorf argues that absent a dramatic and highly unusual development—like a Supreme Court decision rejecting the ACA challenge in the next few weeks—that should help the Democratic candidates in Georgia’s runoff elections.
David S. Kemp, a professor at Berkeley Law, and Charles E. Binkley, MD, the director of bioethics at Santa Clara University’s Markkula Center for Applied Ethics, consider the implications of Pope Francis’s recently revealed statement endorsing same-sex civil unions as they pertain to a case currently before the U.S. Supreme Court. Kemp and Binkley argue that the Pope’s statement undermines the moral legitimacy of the Catholic organization’s position and casts a shadow on the premise of its legal arguments.
UNLV Boyd School of Law professor Leslie C. Griffin explains why stigma is a central concept that came up during oral argument before the Supreme Court in Fulton v. City of Philadelphia. Griffin points out that some religions have long supported racial discrimination, citing their religious texts, but courts prohibited such discrimination, even by religious entities. Griffin argues that just as religious organizations should not enjoy religious freedom to stigmatize people of color, so they should not be able to discriminate—and thus stigmatize—people based on sexual orientation.
Cornell law professor Sherry F. Colb comments on two particular aspects of a case in which the U.S. Supreme Court heard oral argument last month, Torres v. Madrid. First, Colb discusses the distinction, for Fourth Amendment purposes, between touching someone directly with one’s hands and touching someone indirectly using an inanimate object. Second, she explains the difference between holding and dicta in a court opinion. Using these two points as illustrations, Colb shows how flexible the Constitution can be, lending itself to very different interpretations.
UF Levin College of Law professor and economist Neil H. Buchanan describes how the U.S. Supreme Court is readying itself to declare Trump the winner of the election. Professor Buchanan points out that no court acting in good faith would apply the text of the Constitution or existing Supreme Court precedents in a way that would allow any of this scheme to see the light of day, but based on what Justice Kavanaugh has written and what Justice Gorsuch strongly suggests, the Court might not even have that minimum amount of good faith.
In this fourth of a series of columns examining the California v. Texas case challenging the Affordable Care Act (ACA), Illinois law dean Vikram David Amar, Michigan Law dean emeritus Evan Caminker, and Illinois law professor Jason Mazzone consider what the appropriate remedy should be if the challengers prevail on the merits of the case. The authors explain why enjoining the 2017 amendment, which zeroed out the potential tax penalty for failure to maintain the specified health insurance coverage, is a more appropriate remedy than striking down the entire ACA.
Amherst College Associate Provost Austin Sarat and attorney Daniel B. Edelman argue that there is nothing the Supreme Court can do to prevent governors from certifying slates of electors that actually reflect the vote of the people in their states. Sarat and Edelman explain why Bush v Gore is both inapplicable, and by its own terms, never supposed to be used as precedent.
Illinois law dean and professor Vikram David Amar describes an underappreciated influence of the late Justice Ruth Bader Ginsburg—her carefully reasoned majority opinion in Arizona Legislature v. Arizona Independent Redistricting Commission. As Dean Amar explains, in that case, Justice Ginsburg rejected nearly identical arguments to those relied on today in asking federal courts to challenge state courts’ and agencies’ rulings protecting the right of their citizens to vote as provided for under state statutes and constitutions.
Cornell law professor Michael C. Dorf explores several options that Democratic presidential candidate Joe Biden should consider if he wins the election and fulfills his proposal of convening a bipartisan commission of constitutional scholars to study and recommend court reforms. Dorf discusses the benefits and limitations of each option and describes how Congress and a President Biden could implement meaningful court reform that could withstand review by the Supreme Court itself.
Marci A. Hamilton—a professor at the University of Pennsylvania and one of the country’s leading church-state scholars—offers eight questions she would have asked Judge Amy Coney Barrett during her confirmation hearings. Hamilton points out that questioning a person’s religious affiliation is considered taboo because of the false, public mythology in the United States that religion is always good and pure, despite overwhelming evidence that religion, which is run by humans, often perpetuates domestic violence against women and children.
In this third of a series of columns examining underexplored issues in the California v. Texas case challenging the Affordable Care Act (ACA), Illinois law dean Vikram David Amar, Michigan Law dean emeritus Evan Caminker, and Illinois law professor Jason Mazzone consider whether the so-called individual mandate of the ACA, now without any tax consequences, is unconstitutional, as the challengers argue. The authors explain why, in their view, the challengers are incorrect, regardless of whether the word “shall” in the ACA is interpreted as obligatory or not.
In this second of a series of columns on the latest prominent challenge to the Affordable Care Act (ACA), Illinois law dean Vikram David Amar, Michigan Law dean emeritus Evan Caminker, and Illinois law professor Jason Mazzone comment on the standing issue presented in California v. Texas. The authors explore the Solicitor General’s creative argument and argue that the argument leaves several hurdles unaddressed. The authors point out that even if the plaintiffs in these cases can overcome the hurdles, the Court should consider that embracing the Solicitor General’s broad new theory would open the door to other, even more aggressive, applications.
UF Levin College of Law professor and economist Neil H. Buchanan reflects on the contributions of the late Justice Ruth Bader Ginsburg to tax law jurisprudence and discusses the potential chaos that faces our country in the upcoming elections. Although he expresses cautious optimism that law and the American public together should prevent a constitutional crisis, Buchanan warns that we should all be frightened by the fact that the election can still be stolen if enough carefully placed Republican partisans are willing to upend our constitutional democracy.
Laura Dooley and Rodger D. Citron—both law professors at Touro College, Jacob D. Fuchsberg Law Center—comment on two consolidated cases pending before the U.S. Supreme Court that present questions of the exercise of personal jurisdiction. Dooley and Citron summarize the facts and procedural history of each case, analyze the issues raised by the defendant, and consider how the recent death of Justice Ruth Bader Ginsburg might affect the Court’s decision.
In this first of a series of columns on the latest prominent challenge to the Affordable Care Act (ACA), Illinois law dean Vikram David Amar, Michigan Law dean emeritus Evan Caminker, and Illinois law professor Jason Mazzone examine the stare decisis effects of the Supreme Court’s initial blockbuster decision involving the ACA. The authors demonstrate several, perhaps surprising, ways that the earlier decision should shape how the Court views the present challenge.
Marci A. Hamilton—a professor at the University of Pennsylvania and one of the country’s leading church-state scholars—warns of a Supreme Court with at least six Catholics, far greater representation than in the general population of the country. Hamilton points out that the disconnect between the composition of the Supreme Court and the rest of the United States is partly a result of the courts being the final haven for those who have lost the culture wars, given that the majority of Americans endorse greater civil rights for the oppressed.
In honor of the late Justice Ruth Bader Ginsburg, SMU Dedman School of Law professor Joanna L. Grossman explains how the Pregnant Workers Fairness Act (PWFA) can promote women’s equal citizenship and protect Justice Ginsburg’s legacy of shaping gender equality. Grossman argues that the PWFA could help break down entrenched occupational segregation in the American economy, and, in so doing, honor Justice Ginsburg’s lifelong commitment to ensuring that women can be full members of society.
Illinois law dean and professor Vikram David Amar reflects on three writings by the late Justice Ruth Bader Ginsburg that he finds himself most drawn to. Amar describes these writings as addressing ideas central to our form of democratic government, namely popular sovereignty, equal voting access, and judicial deference to Congress on policies involving the entire nation.
Cornell law professor Sherry F. Colb comments on a case the U.S. Supreme Court will consider this term that presents the question whether the Eighth Amendment ban on cruel and unusual punishment prohibits sentencing a juvenile offender to life without the possibility of parole. Colb considers the wisdom and constitutionality of imposing such a sentence on a person who was under 18 at the time of his crime.
In honor of the late Justice Ruth Bader Ginsburg, University of Pennsylvania professor Marci A. Hamilton and former clerk to Justice Sandra Day O’Connor, reflects on our country’s first two female Supreme Court Justices and their similarities and differences. Hamilton points out that a majority of Americans support a woman’s right to choose abortion in at least some circumstances and the right to contraception and warns the President and the Senate to think long and hard before they replace Ginsburg on the fly with a someone who is a threat to abortion and contraception.