Constitutional Law Commons^™

Speech And Exercise By Private Individuals And Organizations, Kent Greenawalt

Faculty Scholarship

A central issue about redundancy concerns how far the exercise of religion is simply a form of speech that is, and should be, constitutionally protected only to the extent that reaches speech generally. Insofar as a constitutional analysis leaves flexibility, we have questions about wise legislative choices. To consider these issues carefully, we need to have a sense of what counts as relevant speech and the exercise of religion. That is the focus of this article.

It addresses the basic categorization of what counts as “speech” for freedom of speech and what counts as religious exercise when each is engaged …

Jurisdiction Stripping Circa 2020: What The Dialogue (Still) Has To Teach Us, Henry P. Monaghan

Faculty Scholarship

Since its publication in 1953, Henry Hart’s famous article, The Power of Congress to Limit the Jurisdiction of Federal Courts: An Exercise in Dialectic, subsequently referred to as simply “The Dialogue,” has served as the leading scholarly treatment of congressional control over the federal courts. Now in its seventh decade, much has changed since Hart first wrote. This Article examines what lessons The Dialogue still holds for its readers circa 2020.

Dirty Thinking About Law And Democracy In Rucho V. Common Cause, Luis Fuentes-Rohwer, Guy-Uriel E. Charles

Articles by Maurer Faculty

In order to understand the division in Rucho and, as importantly, to understand why the plaintiffs in Rucho failed to win over the conservatives on the Court, we have to come to terms with these different worldviews on the Court. Is sordid politics an inherently necessary and arguably normatively good part of the political process, and thus a necessary part of our representative institutions? Relatedly, do substantive fairness principles exist—outside of race and the equal-population principle—that constrain political actors when they design electoral structures to favor themselves at the expense of their opponents? We take up these questions in the …

What's Wrong With Obergefell, Gregg Strauss

Cardozo Law Review

Although Obergefell v. Hodges was a historic victory for progressive constitutional law, the Supreme Court's glorification of marriage created widespread anxiety among progressive family law scholars. Yet, the critics have still not explained why this marriage rhetoric arouses such moral indignation. Some critics predict Obergefell's rhetoric will shape family and constitutional law in ways that harm nonmarital families, but these forecasts rely on weak doctrinal arguments and cynical speculation about judicial behavior. Others argue Obergefell's rhetoric was gratuitously insulting. Is that as deep as the objection goes?

Obergefell's glorification of marriage is wrong, not because it was …

The People's Lawyer: The Role Of Attorney General In The Twenty-First Century, Mark J. Herring

University of Richmond Law Review

For the last five years, it has been my privilege to serve the people as their attorney general. The origin of the position of attorney general can be traced back centuries, but in a world that has become more interconnected, complex, and fast-paced, what does the role of a state attorney general entail in the twenty-first century and beyond? Is the proper role as a diligent but reactive defender of statutes and state agencies, or is there a deeper responsibility that calls for a more proactive and engaged use of its tools and authority? I have found that the job …

A Prudential Take On A Prudential Takings Doctrine, Katherine Mims Crocker

Faculty Publications

The Supreme Court is set to decide a case requesting reconsideration of a doctrine that has long bedeviled constitutional litigants and commentators. The case is Knick v. Township of Scott, and the doctrine is the "ripeness" rule from Williamson County Regional Planning Commission v. Hamilton Bank that plaint~ffs seeking to raise takings claims under the Fifth Amendment must pursue state-created remedies first- the so-called "compensation prong" (as distinguished from a separate "takings prong"). This Essay argues that to put the compensation prong in the best light possible, the Court should view the requirement as a "prudential" rule rather than (as …

Property, Persons, And Institutionalized Police Interdiction In Byrd V. United States, Eric J. Miller

Loyola of Los Angeles Law Review

During a fairly routine traffic stop of a motorist driving a rental car, two State Troopers in Harrisburg, Pennsylvania, discovered that the driver, Terrence Byrd, was not the listed renter. The Court ruled that Byrd nonetheless retained a Fourth Amendment right to object to the search. The Court did not address, however, why the Troopers stopped Byrd in the first place. A close examination of the case filings reveal suggests that Byrd was stopped on the basis of his race. The racial feature ofthe stop is obscured by the Court’s current property-basedinterpretation of the Fourth Amendment’s right to privacy.

Although …

Originalism And Congressional Power To Enforce The Fourteenth Amendment, Christopher W. Schmidt

Washington and Lee Law Review Online

In this Essay, I argue that originalism conflicts with the Supreme Court’s current jurisprudence defining the scope of Congress’ power to enforce the Fourteenth Amendment. Under the standard established in Boerne v. Flores, the Court limits congressional power under Section 5 of the Fourteenth Amendment to statutory remedies premised on judicially defined interpretations of Fourteenth Amendment rights. A commitment to originalism as a method of judicial constitutional interpretation challenges the premise of judicial interpretive supremacy in Section 5 jurisprudence in two ways. First, as a matter of history, an originalist reading of Section 5 provides support for broad judicial …

Why Kavanaugh Should Not Attend The White House Ceremony, Michael Herz

Online Publications

Brett Kavanaugh is now Justice Kavanaugh. He has been nominated, confirmed and — in a private ceremony on Saturday conducted by Chief Justice John Roberts and the retired Justice Anthony Kennedy — sworn in. There is nothing left to do. So why is he scheduled to be at the White House on Monday evening for a public ceremony, one that President Trump has inaccurately called a “swearing-in ceremony”?

A New Voting Rights Act For A New Century: How Liberalizing The Voting Rights Act’S Bailout Provisions Can Help Pass The Voting Rights Advancement Act Of 2017, Mario Q. Fitzgerald

Brooklyn Law Review

The U.S. Supreme Court struck down the coverage formula of the Voting Rights Act (VRA) in Shelby County. v. Holder in 2013. Members of Congress have attempted to renew the VRA with an updated coverage formula through the Voting Rights Advancement Acts of 2015 and of 2017. Unfortunately, Congressional Republicans have not supported either bill. Even if passed in its current form, the Supreme Court is likely to strike down the Voting Rights Advancement Act of 2017 (VRAA) for violating the principle of “equal sovereignty between the States” as set forth by the Court in Shelby County. Therefore, this note …

Accusers As Adjudicators In Agency Enforcement Proceedings, Andrew N. Vollmer

University of Michigan Journal of Law Reform

Largely because of the Supreme Court’s 1975 decision in Withrow v. Larkin, the accepted view for decades has been that a federal administrative agency does not violate the Due Process Clause by combining the functions of investigating, charging, and then resolving allegations that a person violated the law. Many federal agencies have this structure, such as the Securities and Exchange Commission (SEC) and the Federal Trade Commission.

In 2016, the Supreme Court decided Williams v. Pennsylvania, a judicial disqualification case that, without addressing administrative agencies, nonetheless raises a substantial question about one aspect of the combination of functions at agencies. …

Originalist Theory And Precedent: A Public Meaning Approach, Lawrence B. Solum

Faculty Scholarship

This Article provides some introductory thoughts about the relationship between originalist constitutional theory and the proper role of precedent in the American judicial system. The development of these thoughts begins in Part I, which provides a brief introduction to originalism and its principle rival, which is sometimes called “living constitutionalism.” Part II describes the problem of precedent for originalism, emphasizing that the nature of the problem depends in part on our understanding of precedent. Part III offers some reflections on the question as to the constitutional status of the doctrine of horizontal stare decisis in the United States Supreme Court. …

Kennedy's Last Term: A Report On The 2017-2018 Supreme Court, Marc O. Degirolami, Kevin C. Walsh

Faculty Publications

(Excerpt)

Twenty-eighteen brought the end of Justice Anthony Kennedy’s tenure on the Supreme Court. We are now entering a period of uncertainty about American constitutional law. Will we remain on the trajectory of the last half-century? Or will the Court move in a different direction?

The character of the Supreme Court in closely divided cases is often a function of the median justice. The new median justice will be Chief Justice John Roberts if Kennedy’s replacement is a conservative likely to vote most often with Justices Clarence Thomas, Neil Gorsuch, and Samuel Alito. This will mark a new phase of …

Special Justifications, Randy J. Kozel

Journal Articles

The Supreme Court commonly asks whether there is a “special justification” for departing from precedent. In this Response, which is part of a Constitutional Commentary symposium on Settled Versus Right: A Theory of Precedent, I examine the existing law of special justifications and describe its areas of uncertainty. I also compare the Court’s current doctrine with a revised approach to special justifications designed to separate the question of overruling from deeper disagreements about legal interpretation. The aspiration is to establish precedent as a unifying force that enhances the impersonality of the Court and of the law, promoting values the Justices …

The Security Court, Matt Steilen

Maryland Law Review Online

The Supreme Court is concerned not only with the limits of our government’s power to protect us, but also with how it protects us. Government can protect us by passing laws that grant powers to its agencies or by conferring discretion on the officers in those agencies. Security by law is preferable to the extent that it promotes rule of law values—certainty, predictability, uniformity, and so on—but, security by discretion is preferable to the extent that it gives government the room it needs to meet threats in whatever form they present themselves. Drawing a line between security by law and …

The Security Court, Matthew J. Steilen

Journal Articles

The Supreme Court is concerned not only with the limits of our government’s power to protect us, but also with how it protects us. Government can protect us by passing laws that grant powers to its agencies or by conferring discretion on the officers in those agencies. Security by law is preferable to the extent that it promotes rule of law values—certainty, predictability, uniformity, and so on—but, security by discretion is preferable to the extent that it gives government the room it needs to meet threats in whatever form they present themselves. Drawing a line between security by law and …

Reasonable Action: Reproductive Rights, The Free Exercise Clause, And Religious Freedom In The United States And The Republic Of Ireland, Liam Ray

St. John's Law Review

(Excerpt)

This Note will argue that by denying certiorari in Stormans v. Wiesman, the Supreme Court missed an important opportunity to provide guidance to the states as to how the Free Exercise Clause applies to the kind of stocking and dispensing regulations adopted by the State of Washington. This Note will further argue from a policy perspective that the approach to these kinds of regulations adopted by the Republic of Ireland (“ROI”) presents the best approach for states to adopt because it provides a balance in terms of respecting the free exercise rights of pharmacists and pharmacy owners with …

Section 1: Moot Court: Nieves, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

How Strong Does The Evidence Against Kavanaugh Need To Be?, Katherine A. Shaw

Online Publications

The allegation made by Christine Blasey Ford — that at age 15 she was the victim of a sexual assault by a 17-year-old Brett Kavanaugh — has not only upended Judge Kavanaugh’s Supreme Court confirmation hearings, but has also left Americans wondering what standards should apply to an accusation like this.

Attempting To Engage In Socially Coherent Dialogue About Religious Liberty And Equality, Alan Brownstein

Journal of Civil Rights and Economic Development

(Excerpt)

Most book reviews reflect the reviewer’s final conclusions about the author’s finished work. This review is more of a snapshot of the lengthy dialogue I have been engaged in for several months with Nelson Tebbe, the author of the book being reviewed. The symposium conference organized by the St. John’s Journal of Civil Rights and Economic Development in September 2016, invited several church-state scholars to comment on a draft manuscript of Nelson Tebbe’s forthcoming book, Religious Freedom in an Egalitarian Age. However, the book was not fully completed when this multi-participant dialogue began.

Judge Kavanaugh, Chevron Deference, And The Supreme Court, Kent H. Barnett, Christina L. Boyd, Christopher J. Walker

Popular Media

How might a new U.S. Supreme Court Justice Brett Kavanaugh review federal agency statutory interpretations that come before him on the Court?

To find at least a preliminary answer, we can look to his judicial behavior while serving on the U.S. Court of Appeals for the D.C. Circuit—and there is plenty of relevant Kavanaugh judicial behavior to observe. Since starting his service on the D.C. Circuit in 2006, Judge Kavanaugh has participated in the disposition of around 2,700 cases and has authored more than 300 opinions. Over a third of those authored opinions involved administrative law.

Justice Scalia And The Demise Of Environmental Law Standing, Patti A. Meeks

Florida State University Journal of Land Use and Environmental Law

No abstract provided.

Case Note: Constitutional Questions In Environmental Regulation: Epa's Use Of Aerial Photography Does Not Constitute A Fourth Amendment Search, Mark Massey

Florida State University Journal of Land Use and Environmental Law

No abstract provided.

Overcoming Williamson County's Troubling State Procedures Rule: How The England Reservation, Issue Preclusion Exceptions, And The Inadequacy Exception Open The Federal Courthouse Door To Ripe Takings Claims, J. David Breemer

Florida State University Journal of Land Use and Environmental Law

This article discusses an avenue available to takings claimants so that they may open the nearly closed door of the federal courts. In Williamson County, the United States Supreme Court established two ripeness prongs that create powerful barriers to landowners seeking to have their takings claims heard on the merits in federal court. Through an in depth analysis of the facts and litigation of this case and others, the author assesses the foundation of the state procedures requirements and concludes it is not required by the Takings Clause. The article scrutinizes the rule's fundamental unfairness and error in its application. …

Racing On Two Different Tracks: Using Substantive Due Process To Challenge Tracking In Schools, Katarina Wong

Duke Journal of Constitutional Law & Public Policy Sidebar

Tracking is a widespread educational practice where secondary schools divide students into different classes or “tracks” based on their previous achievements and perceived abilities. Tracking produces different levels of classes, from low ability to high ability, based on the theory that students learn better when grouped with others at their own level. However, tracking often segregates students of color and low socioeconomic status into low-tracked classes and these students do not receive the same educational opportunities as white and/or wealthier students. Students and parents have historically challenged tracking structures in their schools using an Equal Protection Clause framework. However, this …

Taking Judicial Legitimacy Seriously, Luis Fuentes-Rohwer

Chicago-Kent Law Review

Chief Justice Roberts appears worried about judicial legitimacy. In Gill v. Whitford, the Wisconsin gerrymandering case, he explicitly worries about the message the Court would send if it wades into the gerrymandering debate. More explicitly, he worries about “the status and integrity” of the Court if is seen as taking sides in politically charged controversies. Similarly, during his confirmation hearing, Roberts warned that the Court has a limited role in our constitutional scheme and must stay within it. To decide cases on the basis of policy and not law would compromise the Court’s legitimacy. This Essay is skeptical. For one, …

The Supreme Court And American Politics: Symposium Introduction, Christopher W. Schmidt, Carolyn Shapiro

Chicago-Kent Law Review

No abstract provided.

Above Politics: Congress And The Supreme Court In 2017, Jason Mazzone

Chicago-Kent Law Review

The Supreme Court figured prominently in the November 2016 elections because of the vacancy on the Court that resulted from the death of Justice Antonin Scalia. This Essay picks up the story by examining the place of the Supreme Court in national politics during 2017. It traces congressional efforts to respond to statutory and constitutional rulings by the Court as well as steps to regulate the operations of the Court and the work of the Justices. Although in 2017 Republicans and Democrats introduced numerous bills directed at the Court, these bills were generally modest in scope and, even so, did …

What Members Of Congress Say About The Supreme Court And Why It Matters, Carolyn Shapiro

Chicago-Kent Law Review

Republican and Democratic senators took strikingly different approaches to Justice Neil Gorsuch’s confirmation hearing. Republicans focused on judicial process—what judges are supposed to do, how they are constrained, and the significance of the constitutional separation of powers—evoking rhetoric long used by the political right. Democrats, by contrast, focused primarily on case outcomes, complaining, for example, that Gorsuch favored “the big guy” over “the little guy” in cases he decided as a judge on the Tenth Circuit. This Article critiques the Democrats’ failure to discuss judicial process and to promote their own affirmative vision of the judiciary and the Constitution. A …

Will The Supreme Court Still “Seldom Stray Very Far”?: Regime Politics In A Polarized America, Kevin J. Mcmahon

Chicago-Kent Law Review

This Article examines the concept of a “minority Justice,” meaning a Supreme Court Justice appointed by a President who had failed to win the popular vote and confirmed with the support of a majority of senators who had garnered fewer votes in their most recent elections than their colleagues in opposition. Specifically, Neil Gorsuch was the first “minority Justice,” receiving the support of senators who had collected nearly 20 million fewer votes than those in opposition (54,098,387 to 73,425,062). From there, the Article considers the significance this development, first by examining some of the foundational work of the regime politics …