Law Commons^™

Justice Kavanaugh, Lorenzo V. Sec, And The Post-Kennedy Supreme Court, Matthew C. Turk, Karen E. Woody

Karen Woody

This Article analyzes a recent Supreme Court case, Lorenzo v. Securities and Exchange Commission, and explains why it provides a valuable window into the Court's future now that Justice Kennedy has retired and his seat filled by Justice Brett Kavanaugh. Lorenzo is an important case that raises fundamental interpretative questions about the reach of federal securities statutes. But most significant is its unique procedural posture: when the Supreme Court issues its decision on Lorenzo in 2019, Justice Kavanaugh will be recused while the other eight Justices rule on a lower court opinion from the D.C. Circuit in which he wrote …

Correspondence With Fellow Associate Justices Of The Supreme Court Of The United States, Lewis F. Powell, Jr.

Powell Correspondence

No abstract provided.

Justice Kavanaugh, Lorenzo V. Sec, And The Post-Kennedy Supreme Court, Matthew C. Turk, Karen E. Woody

Scholarly Articles

This Article analyzes a recent Supreme Court case, Lorenzo v. Securities and Exchange Commission, and explains why it provides a valuable window into the Court's future now that Justice Kennedy has retired and his seat filled by Justice Brett Kavanaugh. Lorenzo is an important case that raises fundamental interpretative questions about the reach of federal securities statutes. But most significant is its unique procedural posture: when the Supreme Court issues its decision on Lorenzo in 2019, Justice Kavanaugh will be recused while the other eight Justices rule on a lower court opinion from the D.C. Circuit in which he wrote …

Why Did Liberals Join The Majority In The Masterpiece Case?, Katherine A. Shaw

Online Publications

It was no surprise that Justice Anthony Kennedy, who has cast the decisive vote in so many important Supreme Court cases, wrote Monday’s majority opinion in Masterpiece Cakeshop v. Colorado Civil Rights Commission. The court ruled in favor of a Colorado baker named Jack Phillips who, on religious grounds, had refused to make a wedding cake for a gay couple.

Civil Rights, Erwin Chemerinsky

Erwin Chemerinsky

No abstract provided.

An Overview Of The October 2005 Supreme Court Term, Erwin Chemerinsky

Erwin Chemerinsky

No abstract provided.

Quantifying The Contours Of Power: Chief Justice Roberts & Justice Kennedy In Criminal Justice Cases, Michael A. Mccall, Madhavi M. Mccall

Pace Law Review

This Article seeks to contribute to the debate with an empirical analysis of voting behavior in criminal justice cases decided during the first ten Terms of the Roberts Court era. The following section presents the study’s case selection and introduces the types of measures used to illuminate influence on the High Court (Part II). Court- and individual-level tendencies (Part III) identify potential spheres of influence occupied by Chief Justice Roberts and Justice Kennedy. These bases of judicial power are examined separately in Part IV (Chief Justice Roberts) and Part V (Justice Kennedy). Some possible implications of Justice Scalia’s death on …

How Texas Governor Hopes To Undo Marriage Equality, Arthur S. Leonard

Other Publications

No abstract provided.

Panhandling And The First Amendment: How Spider-Man Is Reducing The Quality Of Life In New York City, Steven J. Ballew

Brooklyn Law Review

Recently, New York and other cities have taken steps to regulate panhandling activity in their communities. These regulations are informed by Broken Windows policing, which emphasizes addressing quality-of-life issues as a strategy for reducing crime. Yet government-imposed limitations on panhandling raise concerns about whether such measures violate panhandlers’ First Amendment rights. This note explores whether it is possible to separate the act of panhandling—defined as approaching a stranger in public and requesting immediate and gratuitous cash payment for oneself—from expression that is protected by the First Amendment. It concludes that, based on a concurrence from Justice Kennedy in International Society …

Who's Afraid Of The Hated Political Gerrymander?, Luis Fuentes-Rohwer

Articles by Maurer Faculty

The political gerrymander has few friends among scholars and commentators. Even a majority on the Supreme Court agreed that the practice violates constitutional and democratic norms. And yet, this is one of the few issues that the US. Supreme Court refuses to regulate. The justices mask their refusal to regulate this area on a professed inability to divine judicially-manageable standards. In turn, scholars offer new standards for the justices to consider. This is not only a mistake but also misguided. The history of the political question doctrine makes clear that the discovery of manageable standards has never controlled the Court's …

Marriage (In)Equality And The Historical Legacies Of Feminism, Serena Mayeri

All Faculty Scholarship

In this essay, I measure the majority’s opinion in Obergefell v. Hodges against two legacies of second-wave feminist legal advocacy: the largely successful campaign to make civil marriage formally gender-neutral; and the lesser-known struggle against laws and practices that penalized women who lived their lives outside of marriage. Obergefell obliquely acknowledges marriage equality’s debt to the first legacy without explicitly adopting sex equality arguments against same-sex marriage bans. The legacy of feminist campaigns for nonmarital equality, by contrast, is absent from Obergefell’s reasoning and belied by rhetoric that both glorifies marriage and implicitly disparages nonmarriage. Even so, the history …

The Racial Evolution Of Justice Kennedy And Its Implications For Law, Theory, And The End Of The Second Reconstruction, Luis Fuentes-Rohwer

Articles by Maurer Faculty

This Article examines the recent turn in Justice Kennedy's race jurisprudence. The shift is palpable, from a narrow and uncompromising approach to the use of race by state actors to a more nuanced and contextual understanding of the role that race plays in American society. This is no small change, best explained by Justice Kennedy 's status on the Court as a "super median. " This is a position of power and influence, as any majority coalition must count on Justice Kennedy's vote; but more importantly, it is also a position of true independence. Justice Kennedy entertains his idiosyncratic and …

An Overview Of The October 2005 Supreme Court Term, Erwin Chemerinsky

Touro Law Review

No abstract provided.

Affirmative Action, Justice Kennedy, And The Virtues Of The Middle Ground, Allen K. Rostron

Faculty Works

When the Supreme Court hears arguments this fall about the constitutionality of affirmative action policies at the University of Texas, attention will be focused once again on Justice Anthony Kennedy. With the rest of the Court split between a bloc of four reliably liberal jurists and an equally solid cadre of four conservatives, the spotlight regularly falls on Kennedy, the swing voter that each side in every closely divided and ideologically charged case desperately hopes to attract. Critics condemn Kennedy for having an unprincipled, capricious, and self-aggrandizing style of decision-making. Though he is often decisive in the sense of casting …

Justice Kennedy’S Use Of Sources Of The Original Meaning Of The Constitution, Gregory E. Maggs

GW Law Faculty Publications & Other Works

The essay concerns one aspect of Justice Kennedy’s jurisprudence, namely, his use of some of the principal sources of the original meaning of the Constitution in his written opinions. By the term “sources of the original meaning of the Constitution,” I refer to the records from the Federal Constitutional Convention of 1787, the records of the state ratifying conventions, the Federalist Papers, dictionaries showing usage of language during the Founding period, and the acts of the First Congress. The goals of this essay are first to identify, quote, and describe passages in which Justice Kennedy has cited these sources, and …

Federalism, Liberty, And Equality In United States V. Windsor, Ernest A. Young, Erin C. Blondel

Faculty Scholarship

This essay argues that federalism played a profoundly important role in the Supreme Court's decision in United States v. Windsor, which struck down the federal Defense of Marriage Act. Arguments to the contrary have failed to appreciate how Justice Kennedy's opinion employed federalism not as a freestanding argument but as an essential component of his rights analysis. Far from being a "muddle," as many have claimed, Justice Kennedy's analysis offered one of the most sophisticated examples to date of the interconnections between federalism, liberty, and equality.

Civil Rights, Erwin Chemerinsky

Pepperdine Law Review

No abstract provided.

Tailoring The Narrow Tailoring Requirement In The Supreme Court's Affirmative Action Cases, Luiz Antonio Salazar Arroyo

Cleveland State Law Review

In his first and only affirmative action decision since becoming the controlling member of the Supreme Court, Justice Kennedy, in Parents Involved in Community Schools v. Seattle School District No. 1, showed a possible willingness to go back to the looser, more contextualist view of the narrow tailoring requirement that the Court embraced when Justice Powell was the swing vote. This Article argues that regardless of whether Justice Kennedy actually was moving back toward a more contextualist approach to narrow tailoring, a shift away from the highly formalistic inquiry adopted by Justice O'Connor back to the looser contextual standard used …

Under-The-Table Overruling, Christopher J. Peters

All Faculty Scholarship

In this contribution to a Wayne Law Review symposium on the first three years of the Roberts Court, the author normatively assesses the Court's practice of "under-the-table overruling," or "underruling," in high-profile constitutional cases involving abortion, campaign-finance reform, and affirmative action. The Court "underrules" when it renders a decision that undercuts a recent precedent without admitting that it is doing so. The author contends that underruling either is not supported by, or is directly incompatible with, three common rationales for constitutional stare decisis: the noninstrumental rationale, the predictability rationale, and the legitimacy rationale. In particular, while the latter rationale - …

Reflections On Justice Kennedy's Opinion In Parents Involved: Why Fifty Years Of Experience Shows Kennedy Is Right, Kevin D. Brown

Articles by Maurer Faculty

No abstract provided.

Supreme Court Report 2006-2007: Closing Of The Courthouse Doors?, Julie M. Cheslik, Andrea Mcmurty, Kristin Underwood

Faculty Works

This article reviews the decisions of the U.S. Supreme Court for the 2006-2007 term focusing on decisions of particular relevance to state and local government. In reviewing those decisions, we focus on the shifts in the Court over time on those issues.

The expectation that the Supreme Court would shift to the right came to fruition in the 2006-07 term by the sheer lack of clear decisions on the merits. Time and again, the Court decided cases on the standing issue, never reaching the merits and frustrating litigants and citizens attempts to define their rights. Yale law professor Judith Resnick …

The Standing And Removal Decisions From The Supreme Court's 2006 Term, Steven H. Steinglass

Law Faculty Articles and Essays

This article reviews some of the more important jurisdictional decisions of the U.S. Supreme Court during the court's 2006-07 term, the first full term that included both of the court's newest justices--Chief Justice John G. Roberts Jr. and Associate Samuel A. Alito Jr. The term begins an era that will likely become known as the Roberts Court, but this term surely belonged to Associate Justice Anthony M. Kennedy, who cast the deciding vote in all 24 of the court's 5-4 decisions.

Biographical Information Regarding Anthony Kennedy From White House Supreme Court Nominee Binder, Anonymous

Historical and Topical Legal Documents

No abstract provided.