Law Commons^™

Replacing Notorious: Barret, Ginsburg, And Postfeminist Positioning, Calvin R. Coker

Faculty Scholarship

This essay offers a rhetorical reading of Amy Coney Barrett’s confirmation hearings to make sense of how widespread outrage over replacing the late Ruth Bader Ginsburg with a conservative idealogue was resolved through the invocation of postfeminist motherhood. I argue that GOP Senators and Barrett herself positioned her nomination as the achievement of feminist goals, justified through rhetorics of choice and the idealization of (white) motherhood. These strategies cement Barrett as the logical and defensible successor to both Ginsburg’s seat and her legacy of feminist work. I conclude with the implications of this circulation of postfeminist motherhood, with focus on …

Justices Citing Justices, Jay D. Wexler

Faculty Scholarship

Scholars have long paid attention to how often and for what reasons Supreme Court justices cite law review articles and academic books in their opinions. More recently, a new area of scholarship has begun to look at how Justices create their own lines of “personal precedent” through not only their prior opinions but also their academic writings. At the intersection of these two areas of inquiry lies questions of how often and for what reasons Supreme Court justices cite the journal articles and books of the various justices sitting on the Court, including their own. With the exception of one …

Loper Bright And The Future Of Chevron Deference, Jack M. Beermann

Faculty Scholarship

The question presented in Loper Bright Industries v. Raimondo¹ is “[w]hether the Court should overrule Chevron or at least clarify that statutory silence concerning controversial powers expressly but narrowly granted elsewhere in the statute does not constitute an ambiguity requiring deference to the agency.” The Court denied certiorari on another question focused on the merits of the case,² indicating that at least four of the Justices are anxious to revisit or at least clarify Chevron. It’s about time, although it’s far from certain that the Court will actually follow through with the promise the certiorari grant indicates.^{3 …}

The Anti-Innovation Supreme Court: Major Questions, Delegation, Chevron And More, Jack M. Beermann

Faculty Scholarship

The Supreme Court of the United States has generally been a very aggressive enforcer of legal limitations on governmental power. In various periods in its history, the Court has gone far beyond enforcing clearly expressed and easily ascertainable constitutional and statutory provisions and has suppressed innovation by the other branches that do not necessarily transgress widely held social norms. Novel assertions of legislative power, novel interpretations of federal statutes, statutes that are in tension with well-established common law rules and state laws adopted by only a few states are suspect simply because they are novel or rub up against tradition. …

Navigating Between "Politics As Usual" And Sacks Of Cash, Daniel C. Richman

Faculty Scholarship

Like other recent corruption reversals, Percoco was less about statutory text than what the Court deems “normal” politics. As prosecutors take the Court’s suggestions of alternative theories and use a statute it has largely ignored, the Court will have to reconcile its fears of partisan targeting and its textualist commitments

Rewriting Whren V. United States, Jonathan Feingold, Devon Carbado

Faculty Scholarship

In 1996, the U.S. Supreme Court decided Whren v. United States—a unanimous opinion in which the Court effectively constitutionalized racial profiling. Despite its enduring consequences, Whren remains good law today. This Article rewrites the opinion. We do so, in part, to demonstrate how one might incorporate racial justice concerns into Fourth Amendment jurisprudence, a body of law that has long elided and marginalized the racialized dimensions of policing. A separate aim is to reveal the “false necessity” of the Whren outcome. The fact that Whren was unanimous, and that even progressive Justices signed on, might lead one to conclude that …

The Right To Counsel In A Neoliberal Age, Zohra Ahmed

Faculty Scholarship

Legal scholarship tends to obscure how changes in criminal process relate to broader changes in the political and economic terrain. This Article offers a modest corrective to this tendency. By studying the U.S. Supreme Court’s right to counsel jurisprudence, as it has developed since the mid-70s, I show the pervasive impact of the concurrent rise of neoliberalism on relationships between defendants and their attorneys. Since 1975, the Court has emphasized two concerns in its rulings regarding the right to counsel: choice and autonomy. These, of course, are nominally good things for defendants to have. But by paying close attention to …

Interpretation, Remedy, And The Rule Of Law: Why Courts Should Have The Courage Of Their Convictions, Jack M. Beermann, Ronald A. Cass

Faculty Scholarship

The Supreme Court’s decision in United States v. Arthrex opens a window on a set of issues debated in different contexts for decades. These issues—how to interpret statutes and constitutional provisions, what sources to look to, whether so far as possible to adopt interpretations that avoid declaring actions of coordinate branches unconstitutional, and where such actions are deemed to have been unconstitutional whether to provide remedies that cabin the most significant implications of such a declaration—go to the heart of the judicial role and the division of responsibilities among the branches of government.

Our principal focus, however, is on the …

“She Blinded Me With Science”: The Use Of Science Frames In Abortion Litigation Before The Supreme Court, Laura Moyer

Faculty Scholarship

While much of the work on amicus briefs focuses on whether such briefs affect Supreme Court outcomes or doctrine, much less is known about the content of these briefs, particularly how groups opt to frame issues as part of their litigation strategy. In this study, I leverage an approach to content analysis that has previously been used to analyze judicial opinions and use it to assess the frames used by amicus groups in a single policy area over four decades. Using an original dataset of amicus briefs filed in Supreme Court cases on the right to abortion, I test the …

Deep Tracks: Album Cuts That Help Define The Essential Scalia, Gary S. Lawson

Faculty Scholarship

Jeff Sutton and Ed Whelan have collected some of Justice Scalia’s “greatest hits” in a volume entitled The Essential Scalia: On the Constitution, the Courts, and the Rule of Law. The book is an excellent introduction to the jurisprudential thought and literary style of one of the most influential legal thinkers—and legal writers—in modern times. As with any “greatest hits” compilation, however, there are inevitably going to be key “album cuts” for which there will not be space. This essay seeks to supplement Sutton and Whelan’s invaluable efforts by surveying three of those “deep tracks” that shed particular light on …

Re-Reading Chevron, Thomas W. Merrill

Faculty Scholarship

Though increasingly disfavored by the Supreme Court, Chevron remains central to administrative law doctrine. This Article suggests a way for the Court to reformulate the Chevron doctrine without overruling the Chevron decision. Through careful attention to the language of Chevron itself, the Court can honor the decision’s underlying value of harnessing comparative institutional advantage in judicial review, while setting aside a highly selective reading that unduly narrows judicial review. This re-reading would put the Chevron doctrine – and with it, an entire branch of administrative law – on firmer footing.

Equality Is A Brokered Idea, Robert L. Tsai

Faculty Scholarship

This essay examines the Supreme Court's stunning decision in the census case, Department of Commerce v. New York. I characterize Chief Justice John Roberts' decision to side with the liberals as an example of pursuing the ends of equality by other means – this time, through the rule of reason. Although the appeal was limited in scope, the stakes for political and racial equality were sky high. In blocking the administration from adding a citizenship question to the 2020 Census, 5 members of the Court found the justification the administration gave to be a pretext. In this instance, that lie …

Symposium: The Puzzling And Troubling Grant In Kisor, Gillian E. Metzger

Faculty Scholarship

From one perspective, the Supreme Court’s decision to grant review in Kisor v. Wilkie is not surprising. Dating back at least to Justice Antonin Scalia’s 2011 concurrence in Talk America v. Michigan Bell Telephone Co., through Decker v. Northwest Environmental Defense Center in 2013 and Perez v. Mortgage Bankers Association in 2015, there’s been growing interest on the Supreme Court’s conservative wing in overturning Auer deference, or the doctrine that an agency’s interpretation of its own regulation is “controlling unless plainly erroneous or inconsistent with the regulation.” The campaign to overturn Auer v. Robbins then stalled, with the court denying …

Elite Patent Law, Paul Gugliuzza

Faculty Scholarship

Over the last twenty years, one of the most significant developments in intellectual property law has been the dramatic increase in the number of patent cases decided by the U.S. Supreme Court. That same time period has also seen the emergence of a small, elite group of lawyers specializing not in any particular area of substantive law but in litigation before the Supreme Court. In recent empirical work, I linked the Court’s growing interest in patent law to the more frequent participation of elite Supreme Court lawyers in patent cases, particularly at the cert. stage. Among other things, I found …

The Supreme Court Bar At The Bar Of Patents, Paul Gugliuzza

Faculty Scholarship

Over the past two decades, a few dozen lawyers have come to dominate practice before the U.S. Supreme Court. By many accounts, these elite lawyers—whose clients are often among the largest corporations in the world—have spurred the Court to hear more cases that businesses care about and to decide those cases in favor of their clients. The Supreme Court’s recent case law on antitrust, arbitration, punitive damages, class actions, and more provides copious examples.

Though it is often overlooked in discussions of the emergent Supreme Court bar, patent law is another area in which the Court’s agenda has changed significantly …

Enough Said: A Proposal For Shortening Supreme Court Opinions, Meg Penrose

Faculty Scholarship

The role of the judiciary, Chief Justice Marshall famously advised, is “to say what the law is.” Yet, how often do the justices issue a written opinion that ordinary Americans can understand? The Supreme Court increasingly issues lengthy and complex opinions, often containing multiple concurring and dissenting opinions. These opinions can be as confusing as they are verbose.

“To Say What the Law Is Succinctly: A Brief Proposal,” analyzes the justices’ legal writing. Are the justices effective in saying what the law is? Insufficient attention has been devoted to evaluating the justices’ writing and their efficacy at communicating the law. …

Supreme Verbosity: The Roberts Court's Expanding Legacy, Mary Margaret Penrose

Faculty Scholarship

The link between courts and the public is the written word. With rare exceptions, it is through judicial opinions that courts communicate with litigants, lawyers, other courts, and the community. Whatever the court’s statutory and constitutional status, the written word, in the end, is the source and the measure of the court’s authority.

It is therefore not enough that a decision be correct—it must also be fair and reasonable and readily understood. The burden of the judicial opinion is to explain and to persuade and to satisfy the world that the decision is principled and sound. What the court says, …

The Way Pavers: Eleven Supreme Court-Worthy Women, Meg Penrose

Faculty Scholarship

Four women have served as Associate Justices on the United States Supreme Court. Since the Court’s inception in 1789, 162 individuals have been nominated to serve as Supreme Court Justices. Five nominees, or roughly 3 percent, have been women. To help put this gender dearth in perspective, more men named “Samuel” have served as Supreme Court Justices than women. Thirteen U.S. Presidents have nominated more people to the Supreme Court than the total number of women that have served on the Court. Finally, there are currently more Catholics serving on the Supreme Court than the number of women appointed in …

Beyond The Bosses' Constitution: The First Amendment And Class Entrenchment, Jedediah S. Purdy

Faculty Scholarship

The Supreme Court’s “weaponized” First Amendment has been its strongest antiregulatory tool in recent decades, slashing campaign-finance regulation, public-sector union financing, and pharmaceutical regulation, and threatening a broader remit. Along with others, I have previously criticized these developments as a “new Lochnerism.” In this Essay, part of a Columbia Law Review Symposium, I press beyond these criticisms to diagnose the ideological outlook of these opinions and to propose an alternative. The leading decisions of the antiregulatory First Amendment often associate free speech with a vision of market efficiency; but, I argue, closer to their heart is antistatist fear of entrenchment …

Equality, Sovereignty, And The Family In Morales-Santana, Kristin Collins

Faculty Scholarship

In Sessions v. Morales-Santana, ³ the Supreme Court encountered a body of citizenship law that has long relied on family membership in the construction of the nation’s borders and the composition of the polity.⁴ The particular statute at issue in the case regulates the transmission of citizenship from American parents to their foreign-born children at birth, a form of citizenship known today as derivative citizenship.⁵ When those children are born outside marriage, the derivative citizenship statute makes it more difficult for American fathers, as compared with American mothers, to transmit citizenship to their foreign-born children.⁶ Over …

The Supreme Court As A Filter Between International Law And American Constitutionalism, Curtis A. Bradley

Faculty Scholarship

As part of a symposium on Justice Stephen Breyer’s book, “The Court and the World,” this essay describes and defends the Supreme Court’s role as a filter between international law and the American constitutional system. In this role, the Court ensures that when international law passes into the U.S. legal system, it does so in a manner consistent with domestic constitutional values. This filtering role is appropriate, the Essay explains, in light of the different processes used to generate international law and domestic law and the different functions served by these bodies of law. The Essay provides examples of this …

Petition For Writ Of Certiorari, Kosilek V. O'Brien, Jennifer Levi, Joseph L. Sulman, Abigail K. Hemani, Michele E. Connolly, James P. Devendorf, Jamie A. Santos, Christine Dieter

Faculty Scholarship

Jennifer Levi, on behalf of Gay & Lesbian Advocates & Defenders, was one of the Authors of the Petition for Writ of Certiorari, filed in the Supreme Court of the United States on behalf of the Petitioner, Michelle Kosilek, in Kosilek v. O'Brien. Questions presented to the Court by the Petitioner were 1.) whether appellate courts must parse “ques­tions that present elements both factual and legal” into their factual and legal components, so that all factual findings can be reviewed for clear error, or whether, as the First Circuit ruled, they may review such questions as a whole along …

The Supreme Court And The Transformation Of Juvenile Sentencing, Elizabeth S. Scott, Thomas Grisso, Marsha Levick, Laurence Steinberg

Faculty Scholarship

In the past decade, the Supreme Court has transformed the constitutional landscape of juvenile crime regulation. In three strongly worded opinions, the Court held that imposing harsh criminal sentences on juvenile offenders violates the Eighth Amendment prohibition against cruel and unusual punishment. In combination, these cases create a special status for juveniles under Eighth Amendment doctrine as a category of offenders whose culpability is mitigated by their youth and immaturity, even for the most serious offenses. The Court also emphasized that juveniles are more likely to reform than adult offenders, and that most should be given a meaningful opportunity to …

The Dangers Of Press Clause Dicta, Ronnell Andersen Jones

Faculty Scholarship

The United States Supreme Court has engaged in an unusual pattern of excessive dicta in cases involving the press. Indeed, a close examination of such cases reveals that it is one of the most consistent, defining characteristics of the U.S. Supreme Court’s media law jurisprudence in the last half century. The Court’s opinions in cases involving the media, while almost uniformly reaching conclusions based on other grounds, regularly include language about the constitutional or democratic character, duty, value, or role of the press — language that could be, but ultimately is not, significant to the constitutional conclusion reached. Although scholars …

The Supreme Court As A Constitutional Court, Jamal Greene

Faculty Scholarship

Political institutions are always works in progress. Their practical duties and aims as instruments of governance may not always match their constitutional blueprints or historical roles. Political offices might not always have the power to do what their constituent officers either need or want to do. A polity's assessment of whether the desired power is a need or a want may indeed mark a boundary between law and politics in the domain of institutional structure. The law gives, or is interpreted to give, political organs the tools they need to function effectively. They must fight for the rest.

Heed Not The Umpire (Justice Ginsburg Called Nfib), Nicole Huberfeld

Faculty Scholarship

A bad reading of the facts in NFIB v. Sebelius has led to new limitations on Congress’s Commerce, Necessary and Proper, and Spending Clause powers. The decision appeared to use healthcare as a vehicle for constitutional change, leading to interpretive gymnastics that invite further litigation. This essay highlights the factual errors in Chief Justice Roberts’s and the joint dissent’s opinions and explains why Justice Ginsburg’s more fact-attuned opinion was the correct analysis of the case.

Post-Reform Medicaid Before The Court: Discordant Advocacy Reflects Conflicting Attitudes, Nicole Huberfeld

Faculty Scholarship

The Supreme Court will decide two major Medicaid cases this term that raise major questions about the program and the tensions it creates between the federal government and the states. The Court heard oral arguments on October 3d in Douglas v. Independent Living Center, a dispute between California and its Medicaid providers regarding reimbursement cuts due to California’s budget crisis. The Medicaid providers argue that these proposed cuts are so extreme as to violate federal law and thus the Supremacy Clause. Their contention hinges on the Equal Access Provision of the Medicaid Act, which commands states to pay healthcare providers …

Veterans Benefits In 2010: A New Dialogue Between The Supreme Court And The Federal Circuit, Paul Gugliuzza

Faculty Scholarship

The Supreme Court rarely grants certiorari in a veterans benefits case. Congress gave the Federal Circuit exclusive jurisdiction over veterans appeals in 1988 but, until 2009, the Supreme Court had reviewed only two Federal Circuit veterans decisions. In the 2010 Term, however, the Court decided its second veterans case in less than two years. Although patent lawyers are familiar with a trend of increasing Supreme Court interest in the Federal Circuit’s work, little attention has been paid to the similar, albeit incipient, trend that may be emerging in the field of veterans law.

In this contribution to the annual Federal …

The Story Of Bob Jones University V. United States: Race, Religion, And Congress' Extraordinary Acquiescence, Olatunde C.A. Johnson

Faculty Scholarship

On May 25, 1983, the Supreme Court ruled 8-1 that the United States Internal Revenue Service (IRS) had authority to deny tax-exempt status to Bob Jones University, Goldsboro Christian School, and other private and religious schools with racially discriminatory educational policies. The Court relied on the statute’s broad purpose and placed significant weight on Congress’ failure to enact legislation to overturn the IRS policy. A complete account of the legislative history, provided here, both supports and undercuts the Court’s opinion. More importantly, this story provides an account of the dynamic interaction among a Supreme Court critical of racial integration, a …

Supreme Court Justices, Empathy, And Social Change: A Comment On Lani Guinier's Demosprudence Through Dissent, Linda C. Mcclain

Faculty Scholarship

Justice Souter's imminent retirement from the U.S. Supreme Court provides President Obama with his first opportunity for a judicial nomination to the high court. President Obama's remarks about the relevance of life experience and of empathy are sparking discussion of relevant judicial qualifications. This Essay examines Professor Lani Guinier's recent argument that dissenting justices, particularly through the use of oral dissents, may spur ordinary people to action and that such dissents may expand the range of democratic action, as part of what she and Gerald Torres call "demosprudence." That controversial decisions by the United States Supreme Court can spur dissenting …