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Book Review: After Apprendi And Erlinger, The Jury - Not The Judge - Determines Whether Or Not The Defendant Is A Habitual Traffic Offender, Harvey Gee

ConLawNOW

This book review discusses Justice Abandoned: How the Supreme Court Ignored the Constitution and Enabled Mass Incarceration by Rachel Barkow. The review concludes that the book persuasively argues that from the 1960s through the 1980s, the Supreme Court repeatedly departed from constitutional text, history, and precedent in expanding the government’s power to arrest, prosecute, and detain. And contends that these trends both curtailed individual liberty and worsened racial inequality. The review then builds on Barkow’s important scholarship to extend her conversation to cover criminal litigation in general jurisdiction state courts—where people are compelled to go when they are cited or …

The Supreme Court And The Constitution, Tom Rozinski

Open Touro Created

2026

The Supreme Court and the Constitution is a casebook for undergraduate students who want to earn about the Constitutional structure of the US government. Since the Supreme Court is responsible for interpreting the Constitution, the book begins with a history of the Court before examining the processes and methods it uses to decide cases. There is also a unit on the development of judicial review and the limitations on the scope of the Court’s actions. One major unit examines the powers of the president in both foreign and domestic affairs, and includes a section on presidential immunities. Another major …

The Holy Trinity: Religion Clauses And Education Funding On The Roberts Court, Philip T.K. Daniel, Jeffrey C. Sun

ConLawNOW

The Supreme Court’s trinity of education subsidy cases have created an emergent pattern in education funding cases that extend much further than just emphasizing rules of neutrality and accommodation. These also potentially harm minoritized perspectives and identities by moving far beyond historic doctrinal groundings of separation of church and state. In three key cases all authored by Chief Justice Roberts, Trinity Lutheran Church of Columbia, Inc. v. Comer (2017),  Espinoza v. Montana Department of Revenue (2020), and Carson v. Makin (2022), the Court in this “Holy Trinity” of decisions moved from a theory of benevolent neutrality to policy abdication, relinquishing …

Universal Injunctions And The Executive-Judicial Relationship In America, Jeremy Kang

Senior Honors Theses

This thesis examines a specific type of legal controversy surrounding the Trump administration’s dealings with the judicial branch. Central to the matter is the concept of universal injunctions: how a federal court can enjoin even non-parties to a case from behaving in certain ways.

The history of universal injunctions, from pre-Enlightenment England to modern America, is initially discussed. Then special attention is given to their use against President Donald Trump in particular, culminating in the Supreme Court curtailing them, and district court judges ignoring the high court’s ruling. Finally, previous examples of conflict between the American executive and judicial branches …

Presidential Immunity: Before And After Trump, Thomas P. Schmidt

Faculty Scholarship

“All the officers of government,” the Supreme Court said long ago, “from the highest to the lowest, are creatures of the law, and are bound to obey it.” Despite that ringing and categorical language, however, the Court has held that the President — the “highest” and most powerful of all government officers — is “immune” from judicial oversight in several respects. Indeed, when the Court held last Term that former presidents are presumptively immune from criminal prosecution for officials acts, the dissenters warned: “In every use of official power, the President is now a king above the law.”

This Article …

The Supreme Court Under Threat: Early Lessons In Judicial Self-Protection, Curtis A. Bradley, Neil S. Siegel

Faculty Scholarship

This Essay explores how the U.S. Supreme Court, despite being vulnerable to defiance of its decisions and political retaliation, has developed tools of judicial self-protection to preserve its institutional authority and thus its capacity to sustain the Constitution and the rule of law. Arguing that the Court performs not only a legal role that requires interpretation of the law but also a political one that demands institutional preservation, the Essay examines how the Court has historically navigated political threats by using a range of tools—including avoidance, delay, narrow rulings, strategic dicta, and rhetorical appeals. The Essay focuses on three nineteenth-century …

Some Realism About Constitutional Remedies, Thomas P. Schmidt, Gillian E. Metzger

Faculty Scholarship

The Supreme Court has wavered between two approaches to questions of executive power, which are often labeled institutional formalism and realism. Formalism treats an institution like the presidency as a “black box” to which the Constitution assigns certain powers. In Trump v. Hawaii,  for example, the Supreme Court upheld President Trump’s infamous travel ban by focusing not on the “particular President” and his past call for a “complete shutdown of Muslims entering the United States,” but rather on “the authority of the Presidency itself.” That is the language of institutional formalism.

Realism, on the other hand, peers into the “black …

The Jurisprudence Of Humanity, Tyler Rose Clemons

Journal of Civil Rights and Economic Development

(Excerpt)

It has become common for Supreme Court Justices—the most powerful legal actors in our society—to explain why “the law” requires them to facilitate, or at least tolerate, terrible human suffering. Such claims are wrong, not just morally but legally. More specifically, they expose the decisions of the Roberts Court as a based on a jurisprudence of nihilism, one that justifies human suffering through vague appeals to the rule of law. These appeals, in turn, thinly conceal a substantive political and moral project.

To support this claim, I proceed in five parts. Part I introduces Albert Camus’s account of nihilism …

Words Matter: The Rhetoric Of National Security And The Reality Of Individual Rights, Christopher J. Borgen

Journal of Civil Rights and Economic Development

(Excerpt)

While the meanings of words can be flexible or contested, they are not infinitely pliable. These limits on words and their uses help define the outer bounds of legitimate state action. However, even the written law is only as stable as our interpretation of what those words mean. There is the risk that a deliberate and persistent misuse of words by states and other actors can eventually change our understanding of the law it.

Some of my work has analyzed the use of words and phrases such as “self-determination,” “sovereignty,” and “secession.” But, in this Essay, I focus on …

The Federal Courts Jurisprudence Of Justice Clarence Thomas, Barnett J. Harris

Catholic University Law Review

In “Personal Precedent at the Supreme Court,” Professor Richard Re argues that Supreme Court justices tend to rely on their “previously expressed views of the law,” including their prior separate opinions when deciding new cases. Richard M. Re, Personal Precedent at the Supreme Court, 136 Harv. L. Rev. 824, 825–26 (2023). These “previously expressed views of the law,” which Re refers to as “personal precedent,” play an extremely important and previously unrecognized role in the development of the law. Re even contends that “though typically excluded from the law, personal precedent may actually be its building block.” Richard M. Re, …

The Supreme Court And Climate Law: A Qualitative Analysis, Tanner Blackington

Undergraduate Honors Theses

This paper seeks to explore the Supreme Court’s understanding of climate justice and its evolution over time. I begin with an explanation of the context on climate law, climate change, and the Supreme Court as an institution. I situate the study in the literature on judicial restraint, institutional barriers, and the powers of the Supreme Court as focal points. Then, drawing on a sample of 20 Supreme Court opinions issued between 2007 and 2025, I offer an empirical analysis which reveals the Supreme Court’s feelings of confinement within the boundaries of federalism and balancing power with the Legislative and Executive …

The Influence Of The Federalist Society On Originalism In Supreme Court Opinions, Edoardo Santopuoli

Honors Theses

This thesis will investigate the influence of the Federalist Society on the use of originalism in Supreme Court opinions. To investigate this influence, justices that served on the Supreme Court from 1994 to 2022 are categorized based on whether or not they are affiliated with the Federalist Society. Then using artificial intelligence (ChatGPT version 5.3), ten Supreme Court opinions known to be originalist are used as a baseline for artificial intelligence to know what an originalist opinion looks like. Then, all majority opinions of the Supreme Court from that timeframe are scored from 1-10, with 10 meaning an opinion is …

The Supreme Court, Regime Politics, And Federalism: From The New Deal To The Trump Era, J. Mitchell Pickerill, Lilly A. Pickerill

Northern Illinois University Law Review

In the 1990s, the conservative majority on the Rehnquist Court championed state sovereignty and autonomy in a series of cases some commentators dubbed a “federalism revolution.” The Supreme Court crafted constitutional doctrines under the Commerce Clause, Tenth and Eleventh Amendments, and Section Five of the Fourteenth Amendment that limited federal powers while protecting or bolstering state powers. The Court’s doctrines in those cases diverged from its approach to constitutional federalism since the New Deal in the 1930s, but it tracked with the conservative Republican political agenda promoting a “new federalism” going back to Presidents Nixon and Reagan. However, as the …

A Thumb On The Scales: How The Court Creates Presumptions To Change The Law, John Leubsdorf

Northern Illinois University Law Review

In four major recent decisions, the Supreme Court deployed the same technique: it created a presumption in favor of the result it preferred and then concluded that the losing party could not rebut that presumption. This invocation of presumptions enabled the majority to reach the result it preferred, while maintaining the appearance of balance and leaving open the possibility of different rulings in future cases. The asserted grounds for erecting the Court’s presumptions-notably history and governmental structure-likewise combined the appearance of objectivity with the reality of choice. Judicial presumptions are not new, but the current Court deploys them on a …

Defining Civil Rico's "Injury To Business Or Property" Requirement: The Supreme Court Takes A Few Steps, Says It Punts, But Actually Fumbles, Randy D. Gordon

Faculty Scholarship

Throughout its history, the RICO statute has presented lawyers with something of an interpretive parlor game. It is indefinite along multiple dimensions and thereby given multiple interpretations, even down to the word level. In Medical Marijuana v. Horn, the Supreme Court set out to define one of RICO's civil-standing provisions: Namely, whether the statute's "injury to business or property" requirement can be satisfied when a plaintiff suffers both economic and personal injuries. In a 5-4 decision, members of the Court engaged in an interpretive battle over the meaning of the phrase and succeeded only in holding that civil RICO does …

Public Opinion And State Abortion Policy, Gender, Age, And Ideology: Agreement With Dobbs Vs. Jackson Women’S Health Organization (2022), Jack Mcroberts

Bates College Undergraduate Law Review

No abstract provided.

Humphrey's Eulogy: A Functionalist View Of Trump V. Slaughter And The Role Of The Ftc, Alex Zhang

Duke Journal of Constitutional Law & Public Policy Sidebar

Trump v. Slaughter presents the Supreme Court with a foundational question about the administrative state: whether the for-cause removal protections afforded to Federal Trade Commission Commissioners under the FTC Act are consistent with Article II's vesting of executive power in the President, and, if not, whether Humphrey's Executor v. United States should be overruled.

In March 2025, President Trump removed two FTC Commissioners without satisfying the statutory standard of inefficiency, neglect of duty, or malfeasance in office. The dismissed Commissioners sued, and the District Court for the District of Columbia granted summary judgment in their favor, holding that Humphrey's Executor …

Brief Of The American Immigration Lawyers Association And Immigration Law Scholars As Amici Curiae In Support Of Respondents, Lindsay Nash

Amicus Briefs

Amicus curiae brief submitted by the American Immigration Lawyers Association and immigration law scholars in support of the respondents in Mullin v. Doe and Trump v. Miot before the Supreme Court of the United States. The brief argues that the Temporary Protected Status (TPS) statute strictly limits the Executive Branch's authority to terminate TPS designations and requires continuation of protection unless the statutory conditions justifying designation no longer exist. The amici further contend that TPS serves a critical humanitarian function by protecting individuals from removal, detention, and loss of work authorization while conditions in designated countries remain unsafe.

The George-Anne Daily, Georgia Southern University

George-Anne Media Group: Newsletters & Magazines

No abstract provided.

Trapped In Time: Georgia’S Juvenile Lifers And The Fight For Real Justice After Miller And Jones, Hannah F. Sanchez

Georgia State University Law Review

In Georgia, a thirteen-year-old child convicted of homicide can be sentenced to die in prison. While most states have retreated from juvenile life without parole, abolishing it through legislation or judicial decision, Georgia has moved in the opposite direction, becoming the nation’s leader in imposing the sentence. A sequence of Supreme Court decisions—four expanding protections and one dismantling them—has produced a volatile legal landscape in which the possibility of relief has been extended and withdrawn.

For children, life without parole is the harshest criminal penalty available, condemning them to spend the rest of their natural lives behind bars without any …

Public Opinion Of And Faith In The U.S. Supreme Court, Allee Gay

Honors Theses

The US Supreme Court has been historically trusted as an impartial arbiter of the Constitution. However, in 2022 the level of public trust in the Supreme Court dropped to a historic low, and faith in the institution has not recovered in the following years. Previous research demonstrated that Supreme Court decisions can influence public opinion and suggested that the Dobbs v. Jackson Women’s Health Clinic can be blamed for this decline. Further research proved that the President’s role in appointing justices can have an effect on the perception of the Court. This study examines both the reactions to controversial cases …

Agenda Control And Precedent, Thomas P. Schmidt

Faculty Scholarship

The U.S. Supreme Court now has vast control over its agenda: It has the power to pick and choose not only what cases it will hear through writs of certiorari, but also what specific legal questions within those cases it will consider. As a result, the Court never revisits a precedent unless it has made a prior, discretionary choice to put the viability of a precedent on its agenda. For that reason, the Court’s powers of agenda control play a significant and underappreciated role in maintaining the continuity of the legal order. Indeed, it is no surprise that the formal …

The Evolution Of The Supreme Court's Second Amendment Jurisprudence, Kermit V. Lipez

Maine Law Review

We live in the shadow of an epidemic of gun violence. We dread the next report of an inevitable mass shooting. We no longer feel secure in public places. We fear for the safety of our children and our grandchildren at their schools. We shake our heads in disbelief at the empty ritual of "thoughts and prayers" for victims and their families. As one commentator put it, we suffer from the "[u]nbearable [m]onotony of [g]rief." Why must we live like this? Why are there no solutions? In conversations posing these questions, there are often references to the Supreme Court's Second …

Brief Of Amici Curiae Immigration Law Professors In Support Of Respondent, Peter L. Markowitz, Lindsay Nash

Amicus Briefs

Amicus curiae brief submitted by immigration law professors in support of the respondent in Bondi v. Lau before the Supreme Court of the United States. The brief argues that lawful permanent residents returning from travel abroad may not be treated as seeking admission unless they satisfy the statutory criteria set forth in the Immigration and Nationality Act. It further contends that ambiguities in deportation statutes should be resolved in favor of noncitizens under the longstanding immigration rule of lenity.

The Supreme Court's Policy Favoring Arbitration And Its Limits, George A. Bermann

Faculty Scholarship

While the federal policy favoring arbitration is codified in the 1925 Federal Arbitration Act (FAA), the strength of that policy depends on the treatment that arbitration receives in federal courts and in the United States Supreme Court in particular.

Courts in all jurisdictions play an important role in fashioning the treatment of arbitration agreements, arbitral proceedings and arbitral awards. However, the judicial role in this regard is especially pronounced in the United States, in view of the problematic state of legislation on the subject. The federal legislation on arbitration is 100 years old and has never been meaningfully amended. The …

Do We Really Want Retired U.S. Supreme Court Justices Practicing Law? A Public Policy Critique To U.S.Supreme Court Term Limits, Michael J. Broyde, Hayden H. Hall

Akron Law Review

Debate over imposing term limits on U.S. Supreme Court Justices has intensified in recent years, with proposals emphasizing potential benefits for judicial independence, ideological balance, and the confirmation process. Yet, much of the scholarly and political discourse has overlooked a significant and underexamined consequence: the post-judicial careers of justices whose service ends well before traditional retirement age. This Article addresses that gap by analyzing the strong likelihood—based on historical patterns from other courts without life tenure—that former Justices would reenter the legal profession, particularly in highly compensated private practice roles. We argue that this prospect raises profound ethical, institutional, and …

Between Seminole Rock And A Hard(Er) Place: A New(Er) Approach To Agency Deference, Kevin O. Leske

Catholic University Law Review

In Loper Bright Enterprises v. Raimondo, the United States Supreme Court in 2024 overruled Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., ending the Chevron doctrine’s reign as the applicable rule for courts to use in reviewing agency interpretations of their authorizing statute. Although Chevron’s demise was no great surprise, the Court’s decision leaves myriad questions that may take decades to answer. The most pressing question is: what is now the precise standard that courts must apply to determine statutory meaning in these cases? But there is a related question that is equally important to our ever-changing …

Communicative Legitimacy: The Supreme Court's Hidden Cultural Binaries In The U.S. Civil Sphere, Steven Arrigg Koh

Faculty Scholarship

How does the U.S. Supreme Court establish its legitimacy? Over the last two hundred years in U.S. society, the Court has interpreted the U.S. Constitution on watershed issues such as slavery, segregation, and marriage equality. And yet the Constitution is just 7,591 words. A puzzle thus emerges: how does the Court intelligibly interpret this short text for U.S. society? This article develops a new theoretical and empirical cultural sociological account of such Supreme Court decision-making, which it calls “communicative legitimacy.” According to this theory, which draws on Jeffrey Alexander’s civil sphere theory, the Court consistently and inevitably draws on a …

Navigating Risk Factor Disclosures: A New, Outlier Ninth Circuit Approach Remains After The Supreme Court Declines To Resolve A Circuit Split In In Re Facebook Securities Litigation, Jessica K. Kocinski

San Diego Law Review

This Casenote examines the implications of the Supreme Court’s recent decision in Amalgamated Bank to dismiss Facebook’s writ of certiorari as improvidently granted, thereby allowing the shareholders’ securities fraud class action lawsuit to proceed in the lower courts.  Specifically, it focuses on whether Facebook shareholders adequately alleged securities fraud under Section 10(b) and Rule 10b-5 as to challenged risk factor disclosures in Facebook’s 2016 Form 10-K under the PSLRA’s heightened pleading standard.  Part II of this Casenote provides background on the Cambridge Analytica data breach, which Facebook allegedly failed to disclose in its 2016 Form 10-K risk factor disclosures.  Part …

Book Review: We're All Traditionalists Now (Most Of The Time), Richard H. Fallon, Jr., The Changing Constitution: Constitutional Law In The Trump-Era Supreme Court, Michael Gentithes

ConLawNOW

This review highlights the scope and importance of Richard Fallon’s book, The Changing Constitution: Constitutional Law in the Trump-Era Supreme Court. Fallon, a giant of constitutional work, provides a comprehensive, accessible, and vitally important catalogue of the Court’s methodological changes in his posthumously published book. The book argues that while textualism and originalism “have achieved unparalleled prominence,” the Court is also “not consistently originalist” and often relies on a version of traditionalism, similar to but importantly distinct from originalism, that marks an important and undertheorized change. And in yet other areas, the Court eschews either originalism or traditionalism for …