Law Commons^™

Department Of Homeland Security V. Regents Of The University Of California And Its Implications, Brian Wolfman

Georgetown Law Faculty Publications and Other Works

The Trump Administration's effort to get rid of Deferred Action for Childhood Arrivals, or DACA, failed before the Supreme Court in Department of Homeland Security v. Regents of the University of California, 140 S. Ct. 1891, 1896 (2020). In this essay -- based on a presentation given to an American Bar Association section in September 2020 -- I review DACA, the Supreme Court's decision, and its potential legal implications.

The failure of the Trump Administration to eliminate DACA may have had significant political consequences, and it surely had immediate and momentous consequences for many of DACA’s hundreds of thousands …

Advisory Adjudication, Girardeau A. Spann

Georgetown Law Faculty Publications and Other Works

The Supreme Court decision in Camreta v. Greene is revealing. The Court first issues an opinion authorizing appeals by prevailing parties in qualified immunity cases, even though doing so entails the issuance of an advisory opinion that is not necessary to resolution of the dispute between the parties. And the Court then declines to reach the merits of the underlying constitutional claim in the case, because doing so would entail the issuance of an advisory opinion that was not necessary to the resolution of the dispute between the parties. The Court's decision, therefore, has the paradoxical effect of both honoring …

Epic Considerations: The Speech That The Supreme Court Would Not Hear In Snyder V. Phelps, Jeffrey Shulman

Georgetown Law Faculty Publications and Other Works

In declining to consider the “epic” posted by the Westboro Baptist Church on its web site, the Supreme Court took most (but not quite all) of the good constitutional stuff out of Snyder v. Phelps. The Court may have sought to make this an easy case by considering only the contents of the church’s picketing placards. For the Court, the placards highlighted such issues of public import as “the political and moral conduct of the United States and its citizens, the fate of our nation, homosexuality in the military, and scandals involving the Catholic clergy.” On grounds that we …

Against Textualism, William Michael Treanor

Georgetown Law Faculty Publications and Other Works

Modern textualists have assumed that careful attention to constitutional text is the key to the recovery of the Constitution's original public meaning. This article challenges that assumption by showing the importance of nontextual factors in early constitutional interpretation. The Founding generation consistently relied on structural concerns, policy, ratifiers' and drafters' intent, and broad principles of government. To exclude such nontextual factors from constitutional interpretation is to depart from original public meaning because the Founders gave these factors great weight in ascertaining meaning. Moreover, for a modern judge seeking to apply original public meaning, the threshold question is not simply; "How …

Original Understanding And The Whether, Why, And How Of Judicial Review, William Michael Treanor

Georgetown Law Faculty Publications and Other Works

For more than one hundred years, legal scholars have endlessly and heatedly debated whether judicial review of federal legislation was part of the original understanding of the Constitution. The stakes of the debate are high. If judicial review was part of the original understanding, then there is a strong argument that the practice is grounded in the majority’s will, just as the Founders’ Constitution is. But if it is not—if, as Alexander Bickel and others have claimed, judicial review was a sleight-of-hand creation of Chief Justice Marshall in Marbury v. Madison—then judicial review is either counter-majoritarian or else must …

Beyond Coercion: Justice Kennedy's Aversion To Animus, Steven Goldberg

Georgetown Law Faculty Publications and Other Works

In evaluating the constitutionality of religious displays, Justice Kennedy adheres to the coercion test. A crèche on the courthouse steps is acceptable because it does not coerce anyone to support or participate in a religious exercise. He rejects the endorsement test, which asks whether the display makes reasonable nonadherents feel like outsiders, finding it to be “flawed in its fundamentals and unworkable in practice.” Yet in the free exercise context, Kennedy has focused on whether a community shows hostility to minority faiths, and his opinions in Romer and Lawrence stress that legislatures acted unconstitutionally in showing animus to gays. Suppose …

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), …

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 …

Sexual Orientation And The Paradox Of Heightened Scrutiny, Nan D. Hunter

Georgetown Law Faculty Publications and Other Works

In Lawrence v. Texas, the Supreme Court performed a double move, creating a dramatic discursive moment: it both decriminalized consensual homosexual relations between adults, and, simultaneously, authorized a new regime of heightened regulation of homosexuality. How that happened and what we can expect next are the subjects of this essay.

"Sir, Yes, Sir!": The Courts, Congress And Structural Injunctions, Mark V. Tushnet

Georgetown Law Faculty Publications and Other Works

This is a deeply confused book. Not that the authors' stance is unclear: They have seen federal courts in action, and they don't like what they see. Their subject is federal judicial supervision of state and local governments through injunctive decrees. The authors' position wouldn't be confused - or at least would be confused in a different way - if they dealt with injunctive decrees aimed at enforcing what the judges took to be constitutional requirements. In such cases there's at least something coherent that can be said about judges displacing democratic decision-making. Sandler and Schoenbrod, though, don't deal with …

The Marbury Mystery: Why Did William Marbury Sue In The Supreme Court?, Susan Low Bloch

Georgetown Law Faculty Publications and Other Works

In 1801, when William Marbury petitioned the Supreme Court to issue a writ of mandamus ordering Secretary of State James Madison to deliver his commission as justice of the peace, he initiated one of the most important cases in the Court's history. But why did Marbury choose the Supreme Court? Was there a lower federal court that could have granted the writ at the time? The short answer is "yes." Rather than making an unsuccessful attempt to invoke the original jurisdiction of the United States Supreme Court, I have learned that he could have brought his suit in the then …

The Case Of The Prisoners And The Origins Of Judicial Review, William Michael Treanor

Georgetown Law Faculty Publications and Other Works

For over one hundred years, scholars have closely studied the handful of cases in which state courts, in the years before the Federal Constitutional Convention, confronted the question whether they had the power to declare laws invalid. Interest in these early cases began in the late nineteenth century as one aspect of the larger debate about the legitimacy of judicial review, a debate triggered by the increasing frequency with which the Supreme Court and state courts were invalidating economic and social legislation. The lawyers, political scientists, and historians who initially unearthed the case law from the 1770s and 1780s used …

The Aspirational Constitution, Robin West

Georgetown Law Faculty Publications and Other Works

Firmly embedded in every theory of judicial decisionmaking lies an important set of assumptions about the way government is supposed to work. Sometimes these theories about government are made explicit. More often they are not. Moreover, deeply embedded in every theory of government is a theory of human nature. Although these assumptions about human nature generally remain latent within the larger theory, because they provide the underpinnings for our ideas about the way government is supposed to work, they drive our notions about judicial decisionmaking. For example, the theory of government reflected in the United States Constitution reveals what one …