Constitutional Law Commons^™

Why Dobbs Is No Roadmap For Deciding State Constitutional Abortion Issues, Daniel A. Small

American University Journal of Gender, Social Policy & the Law

In deciding that Fourteenth Amendment “liberty” does not protect a woman’s decision to end her pregnancy, Dobbs v. Jackson Women’s Health Organization sought to distinguish the precedent that Roe and Casey relied on to recognize an abortion right. The Dobbs majority claimed that this precedent did not support a right to abortion because, in its view, destroying a fetus is more immoral than the conduct at issue in those earlier cases. However, moral concerns about fetal destruction shed no light on the nature or characteristics of a woman’s liberty interest in an abortion decision. These concerns, therefore, cannot show whether …

Rethinking Judicial Power & Remedial Restraint, Caprice L. Roberts

Catholic University Law Review

This Article maintains that groundbreaking Supreme Court cases reshaping judicial power and restraint are frequently remedies centric. The much- anticipated ruling in Trump v. CASA illustrates this correlation. Interpreting traditional equity, the Supreme Court circumscribed federal judicial power to issue universal relief. The Court relied on Marbury v. Madison to bolster its reasoning on the limits of judicial power. Ironically, both cases denied any remedy while enhancing the potential for future judicial power. Whether via judicial review and supremacy power or the Court’s future ability to now be the only federal court able to issue universal remedies—the Court’s role in …

Checks, Balances, Tariffs, And Justice Kavanaugh, Stanley I. Langbein

ConLawNOW

Justice Kavanaugh’s concurring opinion in FCC v. Consumers Research was remarkable in a number of respects, principally because it expressed very strong views on matters currently under consideration by the Supreme Court, although some of the issues he resolved were not issues posed by the Consumers’ Research case itself. Foremost among the positions he expressed were a muted version of the nondelegation doctrine and the view that the major questions doctrine has virtually no application to matters involving foreign affairs. The tariff decision now pending before the Court, in the V.O.S. Enterprises and Learning Research cases, may present a collision …

Bowers, Lawrence And Obergefell: A Case-By-Case Analysis, Hailey Moran

The Downtown Review: An Interdisciplinary Journal Written and Peer-Reviewed by Mandel Honors College Students at Cleveland State University

What does Bowers v. Hardwick, Lawrence v. Texas, and Obergefell v. Hodges all have in common? Each of these Supreme Court cases chronicles the passage of time and advancement in LGBTQ+ rights in America. Not only, however, do they chronicle the rights that have been achieved for LGBTQ+ individuals, but they also chronicle the evolution of the Justices on the bench. These cases here help us understand the influences that encourage the Justice’s decision-making, whether it be the state of the law or the Court’s environment. By analyzing each case, we can understand not only how these cases were decided, …

Cross-Talk, Alicia Bannon, John Q. Barrett, Tyler Rose Clemons, Wilfred U. Codrington Iii, Mark C. Niles

St. John's Law Review

(Excerpt)

John Q. Barrett (“JQB”)

We now enter the exciting segment of the program called cross-talk.

Tyler Rose Clemons (“TRC”)

One of the things that this conversation has brought up for me is whom is the Court overturning precedent on behalf of? What interest? Whose interest is it that the Court is acting to vindicate when it says we got it wrong before, and it is so important that we get it right that we are willing to take this supposedly drastic remedy of overturning our own precedent?

What I was thinking about immediately during Judge Livingston’s remarks was West …

Stare Decisis And The 1l Classroom: Can Legal Reasoning Be Taught Without Judicial Respect For Precedent?, Mark C. Niles

St. John's Law Review

(Excerpt)

I began my career as a law professor in 1998 and, in every year but one, since then I have taught at least one first-year required law school course. I have taught Civil Procedure each of these years and some version of a required Constitutional Law course in about half of them. I want to say just a little bit about stare decisis and its importance in our legal system from the perspective of a law professor teaching first-year students.

I have found that although teaching Civil Procedure involves a focus on a range of substantive issues including judicial …

Stare Decisis And Zombie Laws, Alicia Bannon

St. John's Law Review

(Excerpt)

In recent years, the Supreme Court has shown little interest in stare decisis—the principle that courts should honor precedent—as an animating value in constitutional interpretation. This has put many fundamental rights in a vulnerable posture. This Essay focuses on one underappreciated dimension of the decline in respect for stare decisis as it relates to fundamental rights: the relationship between stare decisis and what I will call, and what others have called, “zombie laws.”

Zombie laws are laws that were rendered inoperative by courts but never rescinded; for example, an abortion ban that became unenforceable after Roe v. Wade. …

Doubting Thomas And Questioning Stare Decisis Under The Roberts Court, Wilfred U. Codrington Iii

St. John's Law Review

(Excerpt)

“[S]tare decisis is ‘not an inexorable command.’ ” Frankly, every time I read these words in a judicial opinion of late, I shudder. And, in fact, it seems like I am reading these words— and shuddering—with increasing regularity.

First off, of course it is not. At times, the Supreme Court has sanctioned manifest injustices in the law. The prime example is the Court’s 1896 decision in Plessy v. Ferguson, which sustained racial segregation under the Fourteenth Amendment. With the blessing of the judiciary, this interpretation of the Reconstruction Constitution supported a regime of racial segregation until, more than …

On Stealth Overruling, Tyler Rose Clemons

St. John's Law Review

(Excerpt)

From Loper Bright v. Raimondo to Dobbs v. Jackson Women’s Health Organization, the Roberts Court has shown itself more than willing to overturn longstanding pillars of American jurisprudence explicitly. While such cases and other pathbreaking opinions have understandably garnered the lion’s share of attention, the Court has also demonstrated an increased willingness to tweak, modify, or even functionally overrule doctrines without expressly stating that it is doing so. I call this phenomenon “stealth overruling.”

A Conversation About Stare Decisis, The Honorable Debra Ann Livingston, John Q. Barrett

St. John's Law Review

(Excerpt)

John Q. Barrett (“JQB”)

Chief Judge Debra Ann Livingston, welcome back to St. John’s.

The Chief Judge has been a friend to us for many years. It is an honor to host someone of her talent and someone in her position: the Chief Judge of the U.S. Court of Appeals for the Second Circuit.

We’re going to have a conversation for the first part of the program, about judging, her work, and stare decisis.

But first, we need to meet you and hear a little bit about your background—where you are from—and the path that took you to the …

A Conversation About Stare Decisis, Debra A. Livingston, John Q. Barrett

Faculty Scholarship

John Q. Barrett (“JQB”)

Chief Judge Debra Ann Livingston, welcome back to St. John’s.

The Chief Judge has been a friend to us for many years. It is an honor to host someone of her talent and someone in her position: the Chief Judge of the U.S. Court of Appeals for the Second Circuit.

We’re going to have a conversation for the first part of the program, about judging, her work, and stare decisis. But first, we need to meet you and hear a little bit about your background — where you are from — and the path that took …

Differing Judicial Perspectives: A Look Into The Evolution And Constitutionality Of The United States' Administrative State, Buchanan Albert Cook

Honors Theses

Over time the United States’ administrative state has evolved into something that is quite unrecognizable from its inception in the early years of the nation. This essay will provide an account of the founding of the United States Constitution while recognizing the intent and design of the framers of the Constitution. In juxtapositioning this account with the current state of administrative agencies, questions over the constitutionality of such agencies will be posed. To answer these questions, an overview of the history of administrative agencies in the United States will be given alongside accompanying and significant Supreme Court Cases. This overview …

Originalism’S Precedent Problem, James Bernstein

Northern Illinois University Law Review

This paper explores the tension between originalism and stare decisis in judicial decision-making. Originalism, which seeks to interpret the Constitution as understood at the time of its ratification, has gained bipartisan acceptance among judges. However, this interpretive approach faces challenges regarding precedent: How should originalist judges handle past decisions that deviate from the original public meaning of the Constitution? The paper examines this issue, particularly in light of originalists’ varied stances on the role of precedent.

Some originalists, like Antonin Scalia and Amy Coney Barrett, acknowledge the need for stare decisis to maintain legal stability, albeit with allowances for overturning …

The Right To Grow Old, Jamal Greene

Faculty Scholarship

This chapter considers the status of a constitutional “right to grow old” under the US Constitution. Understood as a “positive” right – ensuring a certain minimum quality of life to people as they face the challenges of aging – such a right may seem unavailing given the austerity in respect to such rights that many lawyers associate with the US constitutional tradition. This chapter shows this view to be premature, at least. Unlike the kinds of positive rights overtly rejected in prior cases, such as rights to certain forms of social welfare or to racial equality, a right to grow …

Black Women Are Supreme: An Empirical Examination Of Black Women's Evaluations Of Ketanji Brown Jackson, Christine M. Slaughter, Camille Burge-Hicks, Nadia E. Brown

ConLawNOW

This article discusses research on the nomination of the first Black woman Supreme Court Justice, Ketanji Brown Jackson. The study examines how emotions and feelings of connectedness to racial and gender groups shaped evaluations of the historic nomination. The research finds that Black women were overwhelmingly enthusiastic about Jackson’s nomination, but that enthusiasm was attenuated by a wide range of variables like interest in politics and the interplay between racial and gender identity. It analyzes how linked fate, a sense of connection to one’s racial group, is associated with the evaluations of the Jackson nomination. The study finds that Black …

A Peek Behind The Scenes Of Supreme Court Decision Making Concerning The Federal Ip System, Jonathan Band

Joint PIJIP/TLS Research Paper Series

In the 1970s and 80s, the Supreme Court decided three cases that continue to define the limits of the authority of the states within the federal intellectual property system: Goldstein v. California (1973); Kewanee Oil Co. v. Bicron Oil Co. (1974); and Bonito Boats v. Thunder Craft Boats, Inc. (1989). The papers of the Supreme Court Justices that decided these cases show the Court as a human institution wrestling with this complex issue. This issue has assumed new importance as state legislatures have rushed to enact laws on the use of generative artificial intelligence to replicate the voice …

The Waiting Is The Hardest Part: The Constitutionality Of Firearm Waiting Periods, F. Lee Francis

Dickinson Law Review (2017-Present)

This Article examines the constitutionality of firearm waiting period laws through the lens of the Supreme Court’s evolving Second Amendment jurisprudence. Although such laws are frequently defended as prudent public safety measures, their validity turns not on legislative purpose but on constitutional principle, particularly as framed in District of Columbia v. Heller and New York State Rifle & Pistol Ass’n v. Bruen.

Under those decisions, the scope of the Second Amendment is determined not by judicial balancing of contemporary interests, but by reference to the Nation’s historical tradition of firearm regulation. The Article surveys that tradition and finds no …

When Rights Require Permission: The Discriminatory History Of Licensing Laws For Firearm Possession, Bob Barr, Joseph G.S. Greenlee

Dickinson Law Review (2017-Present)

No abstract provided.

Just To Be Safe, Let’S Keep Ignoring What “Arms” Meant In 1791, Jack Thorlin

Dickinson Law Review (2017-Present)

The Supreme Court held in District of Columbia v. Heller and reaffirmed in New York State Rifle & Pistol Ass’n v. Bruen that “arms,” referred to in the Second Amendment, are common weapons useful for lawful purposes. The majority argued that militiamen fought with whatever common weapons they had on hand for civilian purposes, such as self-defense and hunting. Therefore, under Heller, only those weapons are covered by the Second Amendment. However, Heller did little to ground the “self-defense” theory of “arms” in original public meaning or even actual history. Commonality and lawful purpose have proved difficult for lower …

Brennan And State Constitutions, Stephen Wermiel

Scholarly Articles in Law Reviews & Journals

The former Great Gorge Playboy Resort in New Jersey seems an unlikely place to help form a jurisprudential movement toward reliance on state constitutions to protect civil rights and liberties.

One need only turn back the clock to 1976 to find the story of one of the most significant moments in the rise of state constitutions. Anyone who is steeped in this movement is likely familiar with the lead article in the January 1977 issue of the Harvard Law Review, “State Constitutions and the Protection of Individual Rights.” The author was U.S. Supreme Court Justice William J. Brennan Jr.

The Enduring Crisis In Teaching Constitutional Law, Patrick J. Sobkowski

Emory Law Journal Online

Constitutional law is in crisis. The 6-3 conservative majority of the Supreme Court has generally produced the desired results of the current Republican Party. This has led to calls of illegitimacy, activism, and partisanship from left-liberal and progressive scholars and politicians. In 2024, Jesse Wegman published an opinion essay in the New York Times documenting these criticisms from progressive law professors. In this essay, I argue that there is nothing unique about the current crisis. Rather, the political nature of cases is a result of “juristocracy,” which knows no party. In light of this, I provide important context and argue …

National Origin Bias And U.S. Public Opinion On Supreme Court Nominees: Evidence From A Conjoint Experiment, Christopher P. Dinkel, Andrew Ifedapo Thompson, Marc C. Mcallister

Pace Law Review

As the ultimate arbiter of the interpretation of federal law and the U.S. Constitution, the U.S. Supreme Court has a significant impact on businesses and individuals across an increasingly diverse country. Although the vast majority of the Justices who have served on the Court have been white males, recent Presidents have appointed nominees who have brought greater racial and gender diversity to the Court. Despite these efforts, however, not a single U.S. Supreme Court Justice in the past six decades has been born abroad, even though Americans who were born outside the United States constitute nearly a tenth of the …

Book Review The Making Of A Justice: Reflections On My First 94 Years By John Paul Stevens, Stephen Wermiel

Book Reviews

The autobiography of Justice John Paul Stevens, published just a few months before he died, is an enticing travelogue for Supreme Court nerds. Other travelers may want to pick a different landscape.

In The Making of a Justice: Reflections on My First 94 Years, Stevens who died in July 2019, at age 99, spent 130 pages on his life before he joined the Supreme Court and then 394 pages describing the decisions during his thirty-four year as a Justice. Stevens was an agile writer and did as good a job as anyone can of making the narrative accessible, but it …

Breaking Kayfabe, Thomas B. Bennett

Faculty Journal Articles and Book Chapters

The membership of the Supreme Court affects how it decides cases. This maxim is well accepted among the public. But it is exceedingly rare for Supreme Court opinions to acknowledge this fact, even when it provides the best explanation for the Court’s behavior. And in the unusual instance in which Supreme Court opinions do refer to changes in the Court’s membership, it is jarring. This Article explores two questions that flow from these uncontroversial facts. First, why does it happen so rarely? Second, why does it happen at all?

To answer these questions, the Article looks to an unusual source: …

Loopholes Of Liberty: The Supreme Court’S Evisceration Of The Fourth Amendment, David J. Looney

Touro Law Review

The Fourth Amendment’s protections against unwarranted government intrusion are currently undermined by the Supreme Court’s third party and open fields doctrines, which permit warrantless access to shared data and private land beyond a home’s curtilage, clashing with the Amendment’s aim to safeguard privacy and property in an era of advanced surveillance. These doctrines enable arbitrary governmental overreach, necessitating urgent review to restore constitutional protections. Rooted in Enlightenment principles, the Fourth Amendment historically protected “papers” and “effects” from physical trespass, as seen in Boyd v. United States. Katz v. United States introduced a “reasonable expectation of privacy” test, but its subjective …

Our Partisan Supreme Court And An Essential First Step Toward Reclaiming What's Been Lost, Gary Simson

Articles

Partisan decision-making by even only one Supreme Court Justice in a single case is not a trivial matter. The ill effects are greatly compounded when five or more Justices of a similar partisan bent regularly deliberate about, and decide, cases in a partisan way. At that point, we’ve got what can fairly be described as a partisan Supreme Court.

I argue in this Article that, to all of our great misfortune, a partisan Supreme Court is very much what we’ve got today. On a more hopeful note, though, I also argue that although reforming the Court to be a much …

Understanding Free Speech Values At The Supreme Court, Noah C. Chauvin

Faculty Articles

This essay is a book review of The Supreme Court and the Philosopher: How John Stuart Mill Shaped US Free Speech Protections, by Professors Eric Kasper and Troy Kozma. The book argues that John Stuart Mill had an indelible impact on the Supreme Court's free speech jurisprudence, and that through the power of precedent, we have come to have a "Millian "First Amendment. As I explain in the review, Kasper and Kozma have made a compelling case. However, because Mill offered an expansive defense of freedom of expression, it is not enough to say that the Court's free speech jurisprudence …

Is Originalism Bullshit?, Michael L. Smith

Faculty Articles

It’s finally time to answer the big question. This Article draws on the surprisingly robust literature examining the definition, essence, and significance of bullshit and evaluates whether originalist constitutional interpretation fits the bill. I begin with Harry Frankfurt’s definition of bullshit as utterances made in pursuit of the speaker’s goals without regard for their truth value. I also rely on alternate formulations, including bullshit as unclarifiable nonsense as well as contextual and audience-centric variations of bullshit.

While not all instances of originalism are bullshit, I identify those instances which are, and go on to demonstrate that originalism is uniquely prone …

Is Originalism Bullshit?, Michael L. Smith

Lewis & Clark Law Review

It’s finally time to answer the big question. This Article draws on the surprisingly robust literature examining the definition, essence, and significance of bullshit and evaluates whether originalist constitutional interpretation fits the bill. I begin with Harry Frankfurt’s definition of bullshit as utterances made in pursuit of the speaker’s goals without regard for their truth value. I also rely on alternate formulations, including bullshit as unclarifiable nonsense as well as contextual and audience-centric variations of bullshit.

While not all instances of originalism are bullshit, I identify those instances which are, and go on to demonstrate that originalism is uniquely prone …

May Federal Courts Answer Questions When Not Deciding Cases?, Benjamin B. Johnson

UF Law Faculty Publications

Conventional wisdom says that Article III’s case-or-controversy requirement prevents federal courts from answering legal questions when they are not deciding cases. This is only partially correct. This Article shows conditions under which a federal court may answer questions even when not deciding a case. To do so, it traces the appellate power back to its origins in English common law courts and through the early American judiciary. For centuries, common law judges have answered questions sent to them by lower courts when doing so would help those lower courts to decide pending cases. In England, the “case stated” procedure facilitated …