Law Commons^™

Three Observations About Justice Alito's Draft Opinion In Dobbs - Commentary, John M. Greabe

Law Faculty Scholarship

[Excerpt] "There is much to say about Justice Samuel Alito's draft opinion in Dobbs v. Jackson Women's Health Organization, which was leaked from the United States Supreme Court on May 2 [2022].

Obviously, the most significant direct consequence of the proposed decision, which overrules Roe v. Wade (1973) and Planned Parenthood v. Casey (1992) while upholding the constitutionality of a Mississippi law that outlaws most abortions after 15 weeks of pregnancy, would be the restriction or elimination of abortion services throughout much of the nation. This will have all sorts of attendant consequences, large and smaller, many of which …

Commentary: The Workplace Vaccine Decision And Its Implications For Federal Regulatory Power, John M. Greabe

Law Faculty Scholarship

[Excerpt] "In a recent commentary, I contrasted the pragmatic consequentialism of retiring Supreme Court Justice Stephen Breyer – and, more generally, the other two members of the court’s liberal bloc (Justices Sonia Sotomayor and Elena Kagan) – with the structural formalism of the court’s six-justice conservative supermajority. I also suggested that this framework may provide a more useful way to understand many of the court’s recent and upcoming blockbuster decisions than the partisan angle that court watchers so frequently use."

Commentary: The Pragmatic Consequentialism Of Justice Breyer, John M. Greabe

Law Faculty Scholarship

[Excerpt] "Justice Stephen Breyer’s announcement of his intention to retire at the end of the Supreme Court’s current term provides occasion to contrast his approach to judging with the very different approach of the court majority he leaves behind. The contrast is frequently explained in partisan terms: Justice Breyer is a “liberal” who was appointed by a Democratic president (Bill Clinton), whereas the majority is “conservative,” having been appointed by three different Republican presidents (George H.W. Bush, George W. Bush, and Donald Trump).

The use of partisan labels to describe the different approaches to judging employed by the court’s two …

Commentary: Divisive Concepts And Regulation By Threat Of Baseless Lawsuit, John M. Greabe

Law Faculty Scholarship

[Excerpt] "At the State House, attention has returned to New Hampshire's so-called 'divisive concepts' law. The law, enacted in 2021, bars public K-12 teachers from engaging in certain forms of instruction on issues of race, gender, and other forms of discrimination. The Legislature is presently considering bills both to repeal the law and to extend it to the higher education context.

Those who support repeal tend to emphasize the vital need for classroom conversations on topics near the periphery of the restraints on speech imposed by law. And rightly so. The law's purpose and effect are to deter teachers and …