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Full-Text Articles in Law
Sites Of Storytelling: Supreme Court Confirmation Hearings, Patrick Barry
Sites Of Storytelling: Supreme Court Confirmation Hearings, Patrick Barry
Articles
Supreme Court confirmation hearings have an interesting biographical feature: before nominees even say a word, many words are said about them. This feature— which has been on prominent display in the confirmation hearings of Judge Brett Kavanaugh—is a product of how each senator on the confirmation committee is allowed to make an opening statement. Some of these statements are, as Robert Bork remembers from his own confirmation hearing, “lavish in their praise,” some are “lavish in their denunciations,” and some are “lavish in their equivocations.”1 The result is a disorienting kind of biography by committee, one which produces not one …
The Fortification Of Inequality: Constitutional Doctrine And The Political Economy, Kate Andrias
The Fortification Of Inequality: Constitutional Doctrine And The Political Economy, Kate Andrias
Articles
As Parts I and II of this Essay elaborate, the examination yields three observations of relevance to constitutional law more generally: First, judge-made constitutional doctrine, though by no means the primary cause of rising inequality, has played an important role in reinforcing and exacerbating it. Judges have acquiesced to legislatively structured economic inequality, while also restricting the ability of legislatures to remedy it. Second, while economic inequality has become a cause célèbre only in the last few years, much of the constitutional doctrine that has contributed to its flourishing is longstanding. Moreover, for several decades, even the Court’s more liberal …
Confirmation Bias, Patrick Barry
Confirmation Bias, Patrick Barry
Articles
Supreme Court confirmation hearings are vapid. Supreme Court confirmation hearings are pointless. Supreme Court confirmation hearings are harmful to a citizenry already cynical about government. Sentiments like these have been around for decades and are bound to resurface each time a new nomination is made. This essay, however, takes a different view. It argues that Supreme Court confirmation hearings are a valuable form of cultural expression, one that provides a unique record of as the theater critic Martin Esslin might say, a nation thinking about itself in public.
Predicting The Fallout From King V. Burwell - Exchanges And The Aca, Nicholas Bagley, David K. Jones, Timothy Stoltzfus Jost
Predicting The Fallout From King V. Burwell - Exchanges And The Aca, Nicholas Bagley, David K. Jones, Timothy Stoltzfus Jost
Articles
The U.S. Supreme Court's surprise announcement on November 7 that it would hear King v. Burwell struck fear in the hearts of supporters of the Affordable Cara Act (ACA). At stake is the legality of an Internal Revenue Service (IRS) rule extending tax credits to the 4.5 million people who bought their health plans in the 34 states that declined to establish their own health insurance exchanges under the ACA. The case hinges on enigmatic statutory language that seems to link the amount of tax credits to a health plan purchased "through an Exchange established by the State." According to …
Hobby Lobby And The Pathology Of Citizens United, Ellen D. Katz
Hobby Lobby And The Pathology Of Citizens United, Ellen D. Katz
Articles
Four years ago, Citizens United v. Federal Election Commission held that for-profit corporations possess a First Amendment right to make independent campaign expenditures. In so doing, the United States Supreme Court invited speculation that such corporations might possess other First Amendment rights as well. The petitioners in Conestoga Wood Specialties Corp. v. Sebelius are now arguing that for-profit corporations are among the intended beneficiaries of the Free Exercise Clause and, along with the respondents in Sebelius v. Hobby Lobby Stores, that they also qualify as “persons” under the Religious Freedom Restoration Act (RFRA). Neither suggestion follows inexorably from Citizens United, …
Hollowed-Out Democracy, Kate Andrias
Hollowed-Out Democracy, Kate Andrias
Articles
Professors Joseph Fishkin’s and Heather Gerken’s essay for this symposium, The Two Trends That Matter for Party Politics, along with the larger project of which it is a part, marks a notable turn (or return) in the law-of-democracy field. Unlike much recent scholarship, Fishkin’s and Gerken’s work does not offer a comprehensive theory of corruption or equality, but instead analyzes the relationship between campaign finance law and the actual functioning of political parties in our democracy. In brief, Fishkin and Gerken tell us that our contemporary political parties are at once highly polarized and oddly weak. They claim this is …
Election Law's Lochnerian Turn, Ellen D. Katz
Election Law's Lochnerian Turn, Ellen D. Katz
Articles
This panel has been asked to consider whether "the Constitution [is] responsible for electoral dysfunction."' My answer is no. The electoral process undeniably falls well short of our aspirations, but it strikes me that we should look to the Supreme Court for an accounting before blaming the Constitution for the deeply unsatisfactory condition in which we find ourselves.
Constitutional Expectations, Richard A. Primus
Constitutional Expectations, Richard A. Primus
Articles
The inauguration of Barack Obama was marred by one of the smallest constitutional crises in American history. As we all remember, the President did not quite recite his oath as it appears in the Constitution. The error bothered enough people that the White House redid the ceremony a day later, taking care to get the constitutional text exactly right. Or that, at least, is what everyone thinks happened. What actually happened is more interesting. The second time through, the President again departed from the Constitution's text. But the second time, nobody minded. Or even noticed. In that unremarked feature of …
Barack Obama, Margarita Lopez Torres, And The Path To Nomination, Ellen D. Katz
Barack Obama, Margarita Lopez Torres, And The Path To Nomination, Ellen D. Katz
Articles
Operating within these regimes, Obama was able to mount a credible--and ultimately successful--challenge to the leadership's choice for the nomination while Lopez Torres could not. This article offers an explanation why. It argues that Obama succeeded where Lopez Torres failed because the nomination process Obama traversed was more penetrable and more contestable than the one Lopez Torres faced.
Reviving The Right To Vote, Ellen D. Katz
Reviving The Right To Vote, Ellen D. Katz
Articles
Losers in partisan districting battles have long challenged the resulting districting plans under seemingly unrelated legal doctrines. They have filed lawsuits alleging malapportionment, racial gerrymandering, and racial vote dilution, and they periodically prevail. Many election law scholars worry about these lawsuits, claiming that they needlessly "racialize" fundamentally political disputes, distort important legal doctrines designed for other purposes, and provide an inadequate remedy for a fundamentally distinct electoral problem. I am not convinced. This Article argues that the application of distinct doctrines to invalidate or diminish what are indisputably partisan gerrymanders is not necessarily problematic, and that the practice may well …
From Laredo To Fort Worth: Race, Politics And The Texas Redistricting Case, Ellen D. Katz
From Laredo To Fort Worth: Race, Politics And The Texas Redistricting Case, Ellen D. Katz
Articles
LULAC v. Perry held that Texas violated Section 2 of the Voting Rights Act when it displaced nearly 100,000 Latino residents from a congressional district in Laredo to protect the Republican incumbent they refused to support. At the same time, the Justices let stand the dismantling of a so-called “coalition” district in Fort Worth where African-American voters comprising a minority of the district’s population allegedly enjoyed effective control in deciding the district’s representative. Only Justice Kennedy supported the outcome in both Laredo and Fort Worth. His opinion marks the first time that he, or indeed a majority of the Justices, …
Trying To Make Peace With Bush V. Gore (Symposium: Bush V. Gore Issue 2001), Richard D. Friedman
Trying To Make Peace With Bush V. Gore (Symposium: Bush V. Gore Issue 2001), Richard D. Friedman
Articles
The Supreme Court's decision in Bush v. Gore, shutting down the recounts of Florida's vote in the 2000 presidential election and effectively awarding the election to George W. Bush, has struck many observers, including myself, as outrageous.' Decisions of the Supreme Court should be more than mere reflections of ideological or partisan preference thinly camouflaged behind legalistic language. It would therefore be pleasant to be able to believe that they are more than that. Accordingly, Judge Richard Posner's analysis,2 in which he defends the result reached by the Court-though not the path by which it got there-is particularly welcome. Though …
Taking Decisions Seriously, Richard D. Friedman
Taking Decisions Seriously, Richard D. Friedman
Reviews
The New Deal era is one of the great turning points of American constitutional history. The receptivity of the Supreme Court to regulation by state and federal governments increased dra- matically during that period. The constitutionalism that prevailed before Charles Evans Hughes became Chief Justice in 1930 was similar in most respects to that of the beginning of the twen- tieth century. The constitutionalism that prevailed by the time Hughes’ successor Harlan Fiske Stone died in 1946 is far more related to that of the end of the century. How this transformation occurred is a crucial and enduring issue in …
Review Of The Selling Of Supreme Court Nominees, By J. A. Maltese, Richard D. Friedman
Review Of The Selling Of Supreme Court Nominees, By J. A. Maltese, Richard D. Friedman
Reviews
John Anthony Maltese has written a genial book on a subject of enormous importance and enduring interest-presidential selection and senatorial consideration of Supreme Court nominees. Readers new to this field will find The Selling of Supreme Court Nominees a helpful introduction to it. Those more familiar with it will not find much that is surprising.
Chief Justice Hughes' Letter On Court-Packing, Richard D. Friedman
Chief Justice Hughes' Letter On Court-Packing, Richard D. Friedman
Articles
After one of the great landslides in American presidential history, Franklin D. Roosevelt took the oath of office for the second time on January 20, 1937. As he had four years before, Chief Justice Charles Evans Hughes, like Roosevelt a former governor of New York, administered the oath. Torrents of rain drenched the inauguration, and Hughes’ damp whiskers waved in the biting wind. When the skullcapped Chief Justice reached the promise to defend the Constitution, he “spoke slowly and with special emphasis.” The President responded in kind, though he felt like saying, as he later told his aide Sam Rosenman: …
The Supreme Court In Politics., Terrance Sandalow
The Supreme Court In Politics., Terrance Sandalow
Reviews
Despite all that has been written about the bitter struggle initiated by President Reagan's nomination of Robert Bork to a seat on the Supreme Court, its most remarkable feature, that it was waged over a judicial appointment, has drawn relatively little comment. Two hundred years after the Philadelphia Convention, Hamilton's "least dangerous" branch - least dangerous because it would have "no influence over either the sword or the purse, no direction either of the strength or the wealth of the society, and can take no active resolution whatever"'-had come to occupy so important a place in the nation's political life …
The Distrust Of Politics, Terrance Sandalow
The Distrust Of Politics, Terrance Sandalow
Articles
In this Article, Dean Sandalow considers the justifications advanced by those who favor the removal of certain political issues from the political process by extending the reach of judicial review. He begins by examining the distrust of politics in a different context, discussing the proposals made by the Progressives for reforming municipal government, as a vehicle to expose the assumptions underlying the current debate. His comparison of the two historical settings reveals many similarities between the Progressives' reform proposals and the contemporary justiflcations.[or the displacement of politics with constitutional law. Dean Sandalow concludes that the distrust of politics rests not …
Review Of Concerning Dissent And Civil Disobedience, By A. Fortas, Terrance Sandalow
Review Of Concerning Dissent And Civil Disobedience, By A. Fortas, Terrance Sandalow
Reviews
Noah Chomsky has written of Justice Fortas' essay that it "is not serious enough for extended discussion." It would be a mistake to dismiss the essay so lightly. The prestige of Justice Fortas' office almost inevitably will gain for the essay an audience it would not otherwise have had, among whom will be those who will confuse the office with the argument. For some this confusion will insulate the argument from criticism. For others it will tarnish the office.