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Articles 1 - 16 of 16
Full-Text Articles in Supreme Court of the United States
What Lurks Below Beckles, Leah Litman, Shakeer Rahman
What Lurks Below Beckles, Leah Litman, Shakeer Rahman
Articles
This Essay argues that if the Supreme Court grants habeas relief in Beckles v. United States, then it should spell out certain details about where a Beckles claim comes from and who such a claim benefits. Those details are not essential to the main question raised in the case, but the federal habeas statute takes away the Supreme Court’s jurisdiction to hear just about any case that would raise those questions. For that reason, this Essay concludes that failing to address those questions now could arbitrarily condemn hundreds of prisoners to illegal sentences and lead to a situation where the …
The Ada And The Supreme Court: A Mixed Record, Samuel R. Bagenstos
The Ada And The Supreme Court: A Mixed Record, Samuel R. Bagenstos
Articles
According to conventional wisdom, the Supreme Court has resisted the Americans with Disabilities Act (ADA) at every turn. The Court, the story goes, has read the statute extremely narrowly and, as a result, stripped away key protections that Congress intended to provide. Its departure from congressional intent, indeed, was so extreme that Congress passed a statute that overturned several key decisions and codified broad statutory protections. That statute, the ADA Amendments Act of 2008 (ADAAA). passed with widespread bipartisan support, and President George W. Bush signed it into law. The conventional wisdom leaves out a major part of the story. …
Yick Wo At 125: Four Simple Lessons For The Contemporary Supreme Court, Marie A. Failinger
Yick Wo At 125: Four Simple Lessons For The Contemporary Supreme Court, Marie A. Failinger
Michigan Journal of Race and Law
The 125th anniversary of Yick Wo v. Hopkins is an important opportunity to recognize the pervasive role of law in oppressive treatment of Chinese immigrants in the nineteenth and twentieth centuries. It is also a good opportunity for the Supreme Court to reflect on four important lessons gleaned from Yick Wo. First, the Court should never lend justification to the evil of class discrimination, even if it has to decline to rule in a case. Second, where there is persistent discrimination against a minority group, the Court must be similarly persistent in fighting it. Third, the Court needs to take …
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 …
Reinforcing Representation: Enforcing The Fourteenth And Fifteenth Amendments In The Rehnquist And Waite Courts, Ellen D. Katz
Reinforcing Representation: Enforcing The Fourteenth And Fifteenth Amendments In The Rehnquist And Waite Courts, Ellen D. Katz
Articles
A large body of academic scholarship accuses the Rehnquist Court of "undoing the Second Reconstruction," just as the Waite Court has long been blamed for facilitating the end of the First. This critique captures much of what is meant by those generally charging the Rehnquist Court with "conservative judicial activism." It posits that the present Court wants to dismantle decades' worth of federal antidiscrimination measures that are aimed at the "reconstruction" of public and private relationships at the local level. It sees the Waite Court as having similarly nullified the civil-rights initiatives enacted by Congress following the Civil War to …
Conflating Scope Of Right With Standard Of Review: The Supreme Court's Strict Scrutiny Of Congressional Efforts To Enforce The Fourteenth Amendment, Melissa Hart
Publications
No abstract provided.
Indirect Constitutional Discourse: A Comment On Meese, Robert F. Nagel
Indirect Constitutional Discourse: A Comment On Meese, Robert F. Nagel
Publications
No abstract provided.
Legislative Inputs And Gender-Based Discrimination In The Burger Court, Earl M. Maltz
Legislative Inputs And Gender-Based Discrimination In The Burger Court, Earl M. Maltz
Michigan Law Review
In An Interpretive History of Modem Equal Protection, Michael Klarman poses a powerful challenge to the conventional wisdom regarding the structure of Burger Court jurisprudence. Most commentators have concluded that during the Burger era the Court lacked a coherent vision of constitutional law, and was given to a "rootless" activism or a "pragmatic" approach to constitutional analysis. Klarman argues that, at least in the area of equal protection analysis, the Burger Court's approach did reflect a unifying theme, which he describes as a focus on "legislative inputs." According to Klarman, this approach "directs judicial review towards purging legislative decision-making of …
The First Amendment, Burt Neuborne
Pure Politics, Girardeau A. Spann
Pure Politics, Girardeau A. Spann
Michigan Law Review
Part I of this article considers the impact that judicial discretion has on the traditional model of judicial review, and that model's reliance on the Supreme Court as the primary guardian of minority interests. Part II argues that the interests of racial minorities can be better advanced through the ordinary political process than through the process of Supreme Court adjudication. Part Ill emphasizes that minority participation in Supreme Court proceedings cannot ultimately be avoided and, accordingly, suggests a political model of the Court that minorities can use in an effort to neutralize the Court's distortion of the political process. Part …
Judicial Protection Of Minorities, Terrance Sandalow
Judicial Protection Of Minorities, Terrance Sandalow
Articles
In United States v. Carolene Products Co., Justice Stone suggested by indirection that there "may be narrower scope for operation of the presumption of constitutionality" when courts are called upon to determine the validity "of statutes directed at particular religious . . . or national . . . or racial minorities."' In such cases, he explained, "prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry."' Forty years later, …
Racial Preferences In Higher Education: Political Responsibility And The Judicial Role, Terrance Sandalow
Racial Preferences In Higher Education: Political Responsibility And The Judicial Role, Terrance Sandalow
Articles
Controversy continues unabated over the question left unresolved by DeFunis v. Odegaard: whether in its admissions process a state law school may accord preferential treatment to certain racial and ethnic minorities. In the pages of two journals published by the University of Chicago, Professors John Hart Ely and Richard Posner have established diametrically opposed positions in the debate. Their contributions are of special interest because each undertakes to answer the question within the framework of a theory concerning the proper distribution of authority between the judiciary and the other institutions of government. Neither position, in my judgment, adequately confronts the …
Comment On Powell V. Mccormack, Terrance Sandalow
Comment On Powell V. Mccormack, Terrance Sandalow
Articles
The rapid pace of constitutional change during the past decade has blunted our capacity for surprise at Supreme Court decisions. Nevertheless, Powell v. McCormack is a surprising decision. Avoidance of politically explosive controversies was not one of the most notable characteristics of the Warren Court. And yet, it is one thing for the Court to do battle with the Congress in the service of important practical ends or when the necessity of doing so is thrust upon it by the need to discharge its traditional responsibilities. It is quite another to tilt at windmills, especially at a time when the …
Reapportionment In The Supreme Court And Congress: Constitutional Struggle For Fair Representation, Robert G. Dixon Jr.
Reapportionment In The Supreme Court And Congress: Constitutional Struggle For Fair Representation, Robert G. Dixon Jr.
Michigan Law Review
Fair representation is the ultimate goal. At the time of the Reapportionment Decisions, much change was overdue in some states, and at least some change was overdue in most states. We are a democratic people and our institutions presuppose according population a dominant role in formulas of representation. However, by its exclusive focus on bare numbers, the Court may have transformed one of the most intricate, fascinating, and elusive problems of democracy into a simple exercise of applying elementary arithmetic to census data. In so doing, the Court may have disabled itself from effectively considering the more subtle issues …
Some Comments On The Reapportionment Cases, Paul G. Kauper
Some Comments On The Reapportionment Cases, Paul G. Kauper
Michigan Law Review
Any appraisal of the Supreme Court's decisions in the legislative reapportionment cases must necessarily distinguish between the basic policy ingredients and social consequences of the decisions on the one hand, and the question whether the results were reached by a proper exercise of judicial power on the other. Respecting the first of these considerations, I have no difficulty identifying the social advantages accruing from these decisions. Because of the stress on the population principle, the decisions will afford a greater voice to urban interests, will make the legislative process more responsive to current needs of particular concern to urban dwellers, …
Hyneman: The Supreme Court On Trial, William W. Van Alstyne
Hyneman: The Supreme Court On Trial, William W. Van Alstyne
Michigan Law Review
A Review of The Supreme Court on Trial. By Charles S. Hyneman