Law Commons^™

The New Intersectional And Anti-Racist Lgbtqia + Politics: Some Thoughts On The Path Ahead, Marc Spindelman

ConLawNOW

This article examines the changes to LGBTQIA+ consciousness and the politics they are producing. One result of these consciousness shifts is the increasing number of LGBTQIA+-identified people and organizations reconstituting themselves, their identities, and their politics around pro-Black, anti-racist positions, and doing so as foundational elements of their LGBTQIA+ liberation work. At the same time as these developments are unfolding, however, they are on a collision course with emergent social conservative positions and obstacles. These obstacles include developments at a Supreme Court that is increasingly deciding based on constitutional originalism. This article begins to show how the Court’s conservative originalism …

Abortion Rights In The Supreme Court: A Tale Of Three Wedges, Jennifer S. Hendricks

ConLawNOW

In May 2021, the Supreme Court granted certiorari in a case designed to overrule Roe v. Wade. The assumption is that six justices are inclined to repudiate Roe, and that some of those six would like to go further, declaring a constitutional right to life that would prevent the abortion issue from going “back to the states” at all. The question for the next year is not whether Roe will be overruled—it already was, in Planned Parenthood v. Casey—but how far the Court will go. This essay describes the arc of the Supreme Court’s abortion jurisprudence in …

Surprising Originalism: The Regula Lecture, Lawrence B. Solum

ConLawNOW

This article takes the reader on a guided tour of contemporary originalist constitutional theory. Most Americans believe that they already know everything they need to know about constitutional originalism. But in many cases, they are mistaken. Contemporary originalists do not believe that we should ask, "What would James Madison do?" Instead, the mainstream of contemporary originalism aims to recover the original public meaning of the constitutional text. Conservatives and libertarians are sure that originalism is a necessary corrective to the liberal excesses of the Warren Court. Progressives have an almost unshakeable belief that originalism is a right-wing ideology that seeks …

The Icing On The Cake: How Background Factors Affect Law Faculty Predictions In Masterpiece Cakeshop, Michael Conklin

ConLawNOW

In this research, I explore law school faculty perceptions and predictions of the highly publicized Masterpiece Cakeshop case. I created a survey to assess how law faculty members’ prediction of the case may be affected by their area of instruction, background in business, religious involvement, political affiliation, same-sex union celebration participation, exposure to the case, and personal desired outcome for the case. I contacted over 800 law school faculty members, inviting them to participate in the research. The ninety-three completed responses provide insight into how law school faculty demographics may be indicators of their Supreme Court case predictions. Furthermore, different …

The Impact Of Justice Scalia's Replacement On Gender Equality Issues, Wilson R. Huhn

ConLawNOW

The last forty-six years may be accurately described as the era of the modern Republican Supreme Court. As a result of presidential elections, Republican presidents have nominated all ten of the Justices appointed to the United States Supreme Court between 1969 and 1991. Republicans have thus controlled the Court since 1970. During this period the right to gender equality was recognized and the right to marriage equality was realized. However, also during this period many Republican Justices staunchly opposed gender equality, and far more remains to be accomplished.

Since Justice Scalia’s death, the Supreme Court has been deadlocked on a …

Electing Our Judges And Judicial Independence: The Supreme Court's "Triple Whammy", Martin H. Belsky

ConLawNOW

In this article, Martin Belsky makes the case for judicial selection based on merit, as opposed to popular elections. Belsky cites Caperton v. A.T. Massey Coal Company and the recent defeat of three Iowa supreme court justices because of their opinion in a controversial gay marriage case for the proposition that judicial elections can, and do, yield unjust results. Belsky asserts the need for judicial independence, but concludes that this goal is not achievable through elections because of the “triple whammy” of constitutional limitations: (1) the First Amendment protection of the right of judges and judicial candidates to give specific, …

The Roberts' Court Takes A Sledge Hammer To Ashwander And Cautious Constitutional Jurisprudence: Citizens United V. Federal Election Commisson, Allen Shoenberger

ConLawNOW

In this January’s decision of Citizens United v. Federal Election Commission, the Supreme Court overturned more than 100 years of legislative precedent, as well as its own precedent of twenty years, to permit corporations to spend unlimited amounts of money on direct advocacy of the election or defeat of candidates for political office. The breadth of the holding is startling. Although the specific context considered a video-on-demand ninety minute diatribe regarding Presidential aspirant Hilary Clinton, the plain import of the holding reaches all federal and state elections, presidential, congressional, gubernatorial, judicial, and janitorial!

Chief Justice Roberts And The "Forty Thieves", Keith R. Fisher, Konstantina Vagenas

ConLawNOW

“What’s in a name? That which we call a rose/ By any other name would smell as sweet.” Whether or not one agrees with the young Shakespeare about names – and many decidedly do not – numbers (as numerologists undoubtedly will assure you) are decidedly a different story and have always been thought to have extrinsic significance.

The number forty, for example, has extensive numerological significance, principally (though not exclusively) in biblical texts. A time period in the Bible – whether in days, months, or years and whether in the books of the Old or New Testament – that features …

Obergefell V. Hodges: How The Supreme Court Should Have Decided The Case, Adam Lamparello

ConLawNOW

In Obergefell, et al. v. Hodges, Justice Kennedy’s majority opinion legalizing same-sex marriage was based on “the mystical aphorisms of a fortune cookie,” and “indefensible as a matter of constitutional law.” Kennedy’s opinion was comprised largely of philosophical ramblings about liberty that have neither a constitutional foundation nor any conceptual limitation. The fictional opinion below arrives at the same conclusion, but the reasoning is based on equal protection rather than due process principles. The majority opinion holds that same-sex marriage bans violate the Equal Protection Clause because they: (1) discriminate on the basis of gender; (2) promote gender-based stereotypes; and …