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Supreme Court Overview, October Term 2004, Georgetown University Law Center, Supreme Court Institute, Kelly Falls

Supreme Court Overviews

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Preventing The Subversion Of Devlin V. Scardelletti, Brian Wolfman

Georgetown Law Faculty Publications and Other Works

In 2002, the U.S. Supreme Court ruled in Devlin v. Scardelletti that objecting class members could appeal a federal district court’s approval of a class settlement without first intervening in the litigation. Public interest lawyer Brian Wolfman says the ruling was a victory for both objectors and the integrity of class action procedure: Objectors, he argues, help keep fairness hearings fair.

But a number of courts are now ruling that Devlin only applies to non-opt-out class actions, rather than the much more numerous ones that give class members opt-out rights. In this article, Wolfman details the exact wording of the …

The Majoritarian Difficulty: Affirmative Action, Sodomy, And Supreme Court Politics, Darren L. Hutchinson

Faculty Articles

This Article challenges liberal and conservative assessments of Lawrence, Gratz, and Grutter. Although the outcome of these cases might indeed prove helpful to the agendas of social movements for racial and sexual justice, progressive scholars and activists should not receive these cases with elation. Instead, the research of constitutional theorists, critical legal scholars, and political scientists allows for a more contextualized and guarded account of and reaction to these decisions. Instead of representing extraordinary victories for oppressed classes, these cases reflect majoritarian and moderate views concerning civil rights, and the opinions contain many doctrinal elements that reinforce, …

The Supreme Court And Voting Rights: A More Complete Exit Strategy, Grant M. Hayden

Faculty Journal Articles and Book Chapters

To the great relief of many observers, the Supreme Court has recently become more deferential to state legislatures with respect to their political redistricting plans. The only problem is that the Court appears to be in no mood to revisit some of the cases that got it entangled in the political thicket to begin with - the ones rigorously applying the one person, one vote standard. Indeed, it recently issued a summary affirmance of a lower court decision that tightened up its already exacting standards regarding population equality. As a result, the Court's partial retreat from politics is doing more …

Medellin V. Dretke: Federalism And International Law, Curtis A. Bradley, Lori Fisler Damrosch, Martin Flaherty

Faculty Scholarship

This is an edited version of a debate held at Columbia Law School on February 21, 2005.

Constitutionalization, Girardeau A. Spann

Georgetown Law Faculty Publications and Other Works

Students of constitutional law tend to suspect pretty early on that the Constitution simply means whatever the Supreme Court says that it means. Rather than fight that intuition, I think it is best to treat the student insight as one of the basic starting assumptions when teaching a course in Constitutional Law. The goal then becomes to help students figure out how best to maneuver and feel comfortable in a legal universe where the Constitution has only contingent meaning.

What the Supreme Court does when it clothes its political policy preferences in the garb of constitutional law can be described …

Altmann V. Austria And The Retroactivity Of The Foreign Sovereign Immunities Act, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

In Republic of Austria v. Altmann, the U.S. Supreme Court decided that the Foreign Sovereign Immunities Act of 1976 (FSIA) generally applies to claims based on events that occurred before the Statute's enactment. To decide the retroactivity question, the Court had occasion to consider the essential nature of foreign sovereign immunity: is it merely a procedural immunity providing foreign states with present protection from the inconvenience and indignity of a lawsuit, or is it something more than that? The Court's examination of this question was brief and unsatisfying. Its analysis would have been enriched by a recognition that foreign …

Congress's Power To Enforce Fourteenth Amendment Rights: Lessons From Federal Remedies The Framers Enacted , Robert J. Kaczorowski

Faculty Scholarship

Professor Robert Kaczorowski argues for an expansive originalist interpretation of Congressional power under the Fourteenth Amendment. Before the Civil War Congress actually exercised, and the Supreme Court repeatedly upheld plenary Congressional power to enforce the constitutional rights of slaveholders. After the Civil War, the framers of the Fourteenth Amendment copied the antebellum statutes and exercised plenary power to enforce the constitutional rights of all American citizens when they enacted the Civil Rights Act of 1866 and then incorporated the Act into the Fourteenth Amendment. The framers of the Fourteenth Amendment thereby exercised the plenary power the Rehnquist Court claims the …

Judicial Review Before Marbury, William Michael Treanor

Georgetown Law Faculty Publications and Other Works

While scholars have long probed the original understanding of judicial review and the early judicial review case law, this article presents a study of the judicial review case law in the United States before Marbury v. Madison that is dramatically more complete than prior work and that challenges previous scholarship on the original understanding of judicial review on the two most critical dimensions: how well judicial review was established at the time of the Founding and when it was exercised. Where prior work argues that judicial review was rarely exercised before Marbury (or that it was created in Marbury), …

Unconstitutional Courses, Frederic M. Bloom

Publications

By now, we almost expect Congress to fail. Nearly every time the federal courts announce a controversial decision, Congress issues a call to rein in "runaway" federal judges. And nearly every time Congress makes a "jurisdiction-stripping" threat, it comes to nothing.

But if Congress's threats possess little fire, we have still been distracted by their smoke. This Article argues that Congress's noisy calls have obscured another potent threat to the "judicial Power": the Supreme Court itself. On occasion, this Article asserts, the Court reshapes and abuses the "judicial Power"--not through bold pronouncements or obvious doctrinal revisions, but through something more …