Courts Commons^™

The Trouble With Classifications, Aziz Z. Huq

Notre Dame Law Review

The Supreme Court relies increasingly on anticlassification rules to implement the Constitution’s various commands of evenhanded state treatment. These rules direct attention to whether an instance of a forbidden classification is present on the face of a challenged law. They contain two necessary steps. First, a court defines a general category of impermissible terms. Second, a court ascertains whether an instance of the category is found in enacted text—so triggering the familiar strict scrutiny analysis. So defined, anticlassification rules now dominate equal protection, free speech, “dormant” Commerce Clause, and even free exercise jurisprudence. The Roberts Court celebrates these doctrinal tests …

The Lost History Of Judicial Restraint, Derek A. Webb

Notre Dame Law Review

For over 125 years, jurists and scholars who have championed judicial restraint have looked back to James Bradley Thayer’s 1893 Harvard Law Review article, The Origin and Scope of the American Doctrine of Constitutional Law, as the seminal authority for the rule that courts should presume the constitutionality of a challenged law and only invalidate it if its unconstitutionality is “clear” and “beyond a reasonable doubt.” But Thayer presented those three rules (presumption of constitutionality, clear error rule, and reasonable doubt standard) as rooted in historical legal practice in America. And yet none of his twentieth or twenty-first century …

The Seventh Amendment Right To Jury Trial In The Administrative State: Recognizing The Dangers Of The Constitutional Moment, Martin H. Redish, Samy Abdelsalam

Notre Dame Law Review

One prominent constitutional scholar has sought to legitimize this constitutional transformation through resort to a strange and controversial analytical model he describes as the “constitutional moment.” In this Article, we plan to establish two important points: (1) there exists no principled mode of analysis of the Seventh Amendment right to jury trial that justifies the Court’s categorical dichotomy between Article III and non–Article III forums for purposes of the right’s applicability, and (2) while the theory of the “constitutional moment” would in fact justify the Court’s insulation of the administrative state from Seventh Amendment applicability, reliance on such a theory …

Brief Of Amici Curiae Manhattan Institute And Notre Dame Education Law Project In Support Of Plaintiffs-Appellants And Reversal, Nicole Stelle Garnett, Ilya Shapiro, Tim Rosenberger

Court Briefs

CASE NO. 24-4291
John Woolard v. John Thurmond

On Appeal from the United States District Court for the Eastern District of California
Case No. 2:23-CV-02305-JAM-JDP

From the Summary of Argument

As part of California’s diverse array of education options, homeschooling parents may choose to enroll their children in independent-study charter schools, which work with parents to develop custom curriculum for their children’s unique educational needs. The plaintiffs did just that here and enrolled their children in Blue Ridge Academy and Visions in Education, both independent-study charter schools. Unfortunately, not all parents are able to avail themselves of this opportunity because …

Brief Of Lindsay And Matt Moroun Religious Liberty Clinic As Amicus Curiae In Support Of Petitioners, John A. Meiser, Domenic Canonico

Court Briefs

No. 24-319
Roman Catholic Diocese of Albany v. Adrienne A. Harris

On Petition for a Writ of Certiorari to the New York State Court of Appeals

From the Summary of Argument

New York’s abortion-coverage mandate requires many faith-based organizations to violate their deeply held religious beliefs about the sanctity of life. The exemption New York offers to only a narrowly drawn, ill-defined subset of preferred religious groups does not remedy that dramatic intrusion into free exercise rights. Indeed, it only compounds the problem.

Brief Of Apache Elder Ramon Riley, Professor Michalyn Steele, And Six Native American Rights And Cultural Heritage Organizations As Amici Curiae In Support Of Petitioner, John A. Meiser, Meredith H. Kessler

Court Briefs

No. 24-291
Apache Stronghold v. United States of America

On Petition for a Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit

From the Summary of Argument

Meaningful access to sacred sites such as Oak Flat is an indispensable part of many Indigenous tribes’ religious exercise. Nonetheless, the government has repeatedly denied necessary access to these sites, and even destroyed them, thwarting the ability of tribal members to exercise core aspects of their spiritual practices. Regrettably, the Ninth Circuit’s errant decision denies the Apache people critical legal protections against such destruction—and thus only invites the …

Brief Amici Curiae Of Religious Liberty Law Scholars In Support Of Petitioner, W. Thomas Wheeler, Thomas C. Berg, Richard W. Garnett

Court Briefs

No. 24-291
Apache Stronghold v. United States

On Petition for Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit

From the Introduction and Summary of Argument

The federal government owns the land at Oak Flat, where Apache people have worshiped and conducted ceremonies for centuries. As the district court’s findings show, “Apaches view Oak Flat as a ‘direct corridor’ to their Creator’s spirit”—a place “‘uniquely endowed with holiness and medicine’”—“and neither ‘the powers resident there, nor [the Apaches’] religious activities . . . can be relocated.’” App. 201a (opinion of Murguia, C.J.) (quoting Apache Stronghold …

Brief Amicus Curiae Of Federal Courts Professor Derek T. Muller In Support Of Defendant-Appellant, Daniel F. Mummolo, Christopher G. Michel, Rachel G. Frank, Derek T. Muller

Court Briefs

No. 23-7173
David O'Connell v. United States Conference of Catholic Bishops

On Appeal from the United States District Court for the District of Columbia
1:20-cv-01365-JMC ∙ Honorable Jia M. Cobb

From the Introduction and Summary of Argument

The threshold question in this appeal is whether the Court has jurisdiction to hear it. The answer turns on the proper construction of 28 U.S.C. § 1291, which grants this Court jurisdiction over “appeals from all final decisions of the district courts.” In keeping with the provision’s text and history, both the Supreme Court and this Court have long understood Section 1291 to …

Brief Of Amici Curiae Federal Courts Scholars In Support Of Movants, Ryan J. Walsh, Derek T. Muller

Court Briefs

No. 158, Original
Alabama v. California

On Motion for Leave to File Bill of Complaint

From the Introduction and Summary of Argument

The resolution of state-against-state actions is a core function of this Court under our constitutional structure’s original design, which depends upon the peaceful resolution of interstate conflicts. The Framers assigned these suits to this Court precisely because they cannot be heard by state courts and because they raise serious matters of federal harmony.

This Court should grant the motion for leave to file a bill of complaint. Amici express no view on any other procedural or merits issues …

Amended Brief Of Amici Curiae Harold Hongju Koh And Diane Desierto In Support Of Petitioners-Appellees, Hyland Hunt, Ruthanne M. Deutsch, Diane A. Desierto

Court Briefs

No. 23-7174
Hulley Enterprises Ltd. v. Russian Federation

On Appeal from the U.S. District Court for the District of Columbia No. 1:14-cv-01996-BAH, Hon. Beryl A. Howell

From the Introduction and Summary of Argument

This appeal seeks to re-litigate a question that the Russian Federation had already lost with finality in the courts of the seat of arbitration (the Netherlands): namely, whether the Russian Federation ever agreed to arbitrate in the first place. Those arguments are identical to arguments the Russian Federation presented to Dutch courts more than six years ago in a failed effort to set aside the awards. Because …

Defendant St. Isidore Of Seville Catholic Virtual School's Reply Brief In Support Of Motion To Dismiss, Michael H. Mcginley, Steven A. Engel, M. Scott Proctor, John A. Meiser, Michael R. Perri, Socorro Adams Dooley

Court Briefs

No. CV-2023-1857
OKPLAC, Inc. v. Statewide Virtual Charter School Board

From the Introduction

Plaintiffs' opposition to the motions to dismiss distills their challenge to the State's approval of St. Isidore of Seville Catholic Virtual School to its essence: Plaintiffs believe that Oklahoma may never allow a religious organization to operate a charter school because (they contend) any faith-based school would violate the Charter Schools Act and the Oklahoma Constitution. Their other arguments-alleging technical errors in the State's decision to contract with St. Isidore and baseless speculation about how they predict the school might one day violate the law-grow from this …

Brief Of The Manhattan Institute And Notre Dame Education Law Project As Amici Curiae Supporting Petitioners, Nicole Stelle Garnett, Ilya Shapiro, Tim Rosenberger

Court Briefs

No. 23-1084
Jill Hile v. Michigan

On Petition for a Writ of Certiorari to the United States Court of Appeals for the Sixth Circuit

From the Background and Summary of Argument

Petitioners are members of Parent Advocates for Choice in Education Foundation (PACE), which seeks to protect and further educational rights. They contend that Art. VIII, § 2 of the Michigan constitution discriminates against religion. Accordingly, its enforcement would violate the Free Exercise Clause.

Brief Amicus Curiae Of The International Council Of Thirteen Indigenous Grandmothers, The Mica Group, And A Tribal Elder In Support Of Plaintiff-Appellant's Petition For Full En Banc Rehearing, Stephanie Hall Barclay, Meredith Holland Kessler, Francesca Matozzo

Court Briefs

No. 21-15295
Apache Stronghold v. United States of America

On Appeal from the United States District Court for the District of Arizona, Honorable Steven P. Logan (2:21-cv-00050-PHX-SPL)

From the Summary of the Argument

Once again, the Apache community has been denied the rights afforded to it by the Religious Freedom Restoration Act’s plain text—this time by a panel of the en banc court in a deeply contested and divided decision. The full Ninth Circuit should rehear the case en banc to restore the Religious Freedom Restoration Act’s full scope of protection for the Indigenous community, who has uniquely been deprived …

Amicus Curiae Brief Of The Notre Dame Law School Religious Liberty Clinic In Support Of Plaintiffs-Appellants, John A. Meiser, Meredith Holland Kessler

Court Briefs

Nos. 23-3453 and 23-3633
Spirit of Aloha Temple v. County of Maui

Appeal from the United States District Court for the District of Hawaii Honorable Susan Oki Mollway (No. 1:14-cv-00535-SOM-WRP)

From the Summary of the Argument

To determine whether a land-use regulation unlawfully imposes a substantial burden on a plaintiff’s religious exercise, courts conduct a holistic and nuanced inquiry. At bottom, that analysis asks whether and to what extent the government has impaired the plaintiff’s ability to fulfill a religious need. The answer to this question must take into account a range of considerations concerning the plaintiff’s religious beliefs and …

Brief Of Professor Derek T. Muller As Amicus Curiae In Support Of Neither Party, Heather Gebelin Hacker, Derek T. Muller

Court Briefs

No. 23-719
Donald J. Trump v. Norma Anderson

On Writ of Certiorari to the Supreme Court of Colorado

From the Summary of Argument

States hold the power to adjudicate the qualifications of presidential candidates. That power extends to the general election, even though the election is formally a process to appoint presidential electors. And that power extends to the primary election, even though state voters are formally selecting delegates to a party’s nominating convention. But states have no obligation to evaluate the qualifications of presidential candidates, and states may choose to permit openly unqualified presidential candidates to appear on the …

Request For An Advisory Opinion On Climate Emergency And Human Rights By The Republic Of Colombia And The Republic Of Chile, Diane A. Desierto, Francisco Urbina, Aníbal Pérez-Liñán, Nicolas Buitrago Rey, Faisal Yamil Meneses, Garrett Pacholl

Court Briefs

The Notre Dame Law School Human Rights Clinic (NDLS GHRC) in collaboration with the Notre Dame Reparations Design and Compliance Lab (ND Reparations Lab)

From the Introduction

Noting the request of the Republic of Colombia and the Republic of Chile for this Honorable Court to "provide guidance towards human rights-based solutions with an intersectional perspective," this Expert Opinion deliberately draws on interdisciplinary methods that weave international law, international human rights law, jurisprudence, quantitative tools of political science, and qualitative tools of social science research to assist this Honorable Court in its task of addressing the manifold questions brought by the …

Defendant St. Isidore Of Seville Catholic Virtual School's Reply Brief In Support Of Motion To Dismiss, Michael H. Mcginley, Steven A. Engel, M. Scott Proctor, John A. Meiser, Michael R. Perri, Socorro Adams Dooley

Court Briefs

No. CV-2023-1857
OKPLAC, Inc. v. Statewide Virtual Charter School Board

From the Introduction

Plaintiffs' opposition to the motions to dismiss distills their challenge to the State's approval of St. Isidore of Seville Catholic Virtual School ("St. Isidore") to its essence: Plaintiffs believe that the State of Oklahoma may never allow a religious organization to operate a charter school because (they contend) any faith-based school would violate the Charter Schools Act and the Oklahoma Constitution. They purport to raise other, purely technical errors in the Board's decision to partner with St. Isidore; they baselessly speculate about ways in which they predict …

The Conferred Jurisdiction Of The International Criminal Court, Leila Nadya Sadat

Notre Dame Law Review

After twenty years of operation, we know that the International Criminal Court (ICC) works in practice. But does it work in theory? A debate rages regarding the proper conceptualization of the Court’s jurisdiction. Some have argued that the ICC’s jurisdiction is little more than a delegation by states of a subset of their own criminal jurisdiction. They contend that when states ratify the Rome Statute, they transfer some of their own prescriptive or adjudicative criminal jurisdiction to the Court, meaning that the Court cannot do more than the state itself could have done. Moreover, they argue that these constraints are …

Brief Amicus Curiae Of The Notre Dame Law School Religious Liberty Clinic Supporting Plaintiff-Appellant, Francesca Matozzo, John Meiser

Court Briefs

Nos. 23-35560, 23-35585
Cedar Park Assembly of God of Kirkland, Washington v. Myron "Mike" Kreidler

Appeal from the United States District Court for the Western District of Washington, Civil Case No. 3:19-cv-05181-BHL (Hon. Benjamin H. Settle)

From the Argument

Cedar Park’s free-exercise claim is fundamentally distinct from—and demands closer scrutiny than—its equal-protection claim.

Intervenor St. Isidore Of Seville Catholic Virtual School's Brief In Response To Petitioner's Application And Petition, Michael H. Mcginley, Steven A. Engel, M. Scott Proctor, John A. Meiser, Michael R. Perri, Socorro Adams Dooley

Court Briefs

No. MA-121694
Gentner Drummond v. Oklahoma Statewide Virtual Charter School Board

From the Arguments and Authorities

The Petition fails on the merits. Nothing in the Oklahoma Constitution prohibits the State from contracting with a religious school to provide new educational opportunities. And any state law purporting to do so would violate ORFA and the First Amendment.

Amicus Curiae Brief Of The International Council Of Thirteen Indigenous Grandmothers And Carol Logan In Support Of Appellants, Stephanie Hall Barclay, John A. Meiser

Court Briefs

No. 23-50746
Perez v. City of San Antonio

Appeal from the United States District Court for the Western District of Texas Honorable Fred Biery (5:23-cv-00977-FB)

From the Summary of the Argument

For centuries, generations of the Lipan-Apache people have gathered for prayer, mediation, and worship along a bend in the Yanaguana—known as the San Antonio River in English—which mirrors the constellation Eridanus in the skies above. It is a place where the lower, middle, and upper worlds come together; a place that reflects the Yanaguana creation story, which teaches that life began in the area when droplets of water fell …

Unopposed Motion Of The International Council Of Thirteen Indigenous Grandmothers And Carol Logan To File Amicus Curiae Brief In Support Of Appellants, Stephanie Hall Barclay, John A. Meiser

Court Briefs

No. 23-50746
Perez v. City of San Antonio

Appeal from the United States District Court for the Western District of Texas Honorable Fred Biery (5:23-cv-00977-FB)

From the Unopposed Motion for Leave to File Amicus Curiae Brief

Pursuant to Federal Rule of Appellate Procedure 29(a)(3) and Fifth Circuit Rule 27.4, the International Council of Thirteen Indigenous Grandmothers and Carol Logan respectfully move for leave to file a brief as amici curiae in support of Plaintiffs-Appellants Gary Perez and Matilde Torres. A copy of the proposed brief is attached to this motion.¹

St. Isidore Of Seville Catholic Virtual School's Motion To Intervene, Michael H. Mcginley, Steven A. Engel, M. Scott Proctor, John A. Meiser, Michael R. Perri, Socorro Adams Dooley

Court Briefs

No. 121694
Gentner Drummond v. Oklahoma Statewide Virtual Charter School Board

From the Argument and Authority

This Motion to Intervene is both timely and amply supported. Courts assess the timeliness of a motion to intervene "in light of all the circumstances," including "the length of time since the movant knew of its interests in the case; prejudice to the existing parties; prejudice to the movant; and the existence of any unusual circumstances." Tulsa Indus. Auth. v. City of Tulsa, 2011 OK 57, ¶ 31, 270 P.3d 113, 128 (citation omitted) (looking to federal case law for guidance). Courts have …

Brief Of Amicus Curiae California Catholic Conference In Support Of Plaintiffs-Appellants, John A. Meiser, Meredith Holland Kessler

Court Briefs

No. 23-55714
Chaya Loffman v. California Department of Education

Appeal from the United States District Court for the Central District of California Honorable Josephine L. Staton (No. 2:23-cv-01832-JLS-MRW)

From the Argument

California’s exclusion of “sectarian” schools reflects a long history of efforts to suppress and demean disfavored religious groups in the United States.

Brief Amicus Curiae Of The Bruderhof, Clear, The Jewish Coalition For Religious Liberty, And The Sikh Coalition In Support Of Rehearing En Banc, Francesca Matozzo

Court Briefs

No. 22-30686
Damon Landor v. Louisiana Department of Corrections and Public Safety

Appeal from the United States District Court for the Middle District of Louisiana, No. 3:21-cv-733 The Honorable Shelly D. Dick, Chief Judge

From the Summary of the Argument

The Fifth Circuit should rehear en banc the panel decision in this case because it presents a “question of exceptional importance” under Fed. R. App. P. 35: whether the Religious Land Use and Institutionalized Persons Act (RLUIPA) authorizes monetary damages. This issue is exceptionally important for two reasons.

Brief Of Amicus Curiae Notre Dame Law School Religious Liberty Clinic In Support Of Plaintiffs' Motion For Summary Judgment, Casey M. Nokes, Meredith Kessler

Court Briefs

No. 1:22-cv-00156-CL
St. Timothy's Episcopal Church v. City of Brookings

From the Argument

Congress unanimously enacted the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA) to provide sweeping protection for religious exercise against discrimination in land-use regulation. To accomplish this goal, the statute generally prohibits the government from implementing land-use regulations in a manner that imposes a substantial burden on the religious exercise of a person or organization. And several provisions—including the statute’s capacious definition of “religious exercise” and its broad-construction mandate—emphasize the statute’s breadth.

Brief Of Professor Derek T. Muller As Amici Curiae In Support Of Neither Party, Derek T. Muller, Charles R. Shreffler

Court Briefs

No. A23-1354
Joan Growe v. Steve Simon

From the Summary of Argument

States hold the power to adjudicate the qualifications of presidential candidates. That power extends to the general election, even though the election is formally a process to appoint presidential electors. And that power extends to the primary election, even though state voters are formally selecting delegates to a party’s nominating convention. But states have no obligation to evaluate the qualifications of presidential candidates, and states may choose to permit openly unqualified candidates to appear on the ballot.

Defendant St. Isidore Of Seville Catholic Virtual School's Motion To Dismiss, Michael H. Mcginley, Steven A. Engel, M. Scott Proctor, John A. Meiser, Michael R. Perri, Socorro Adams Dooley

Court Briefs

No. CV-2023-1857
OKPLAC, Inc. v. Statewide Virtual Charter School Board

From the Introduction

In 1999, the Oklahoma legislature enacted the Oklahoma Charter Schools Act, inviting both public and private organizations to establish charter schools to "promote a diversity of educational choices" for Oklahoma families. 70 O.S. § 3-134(1)(3). Through the charter school program, Oklahoma partners with these organizations to "[i]ncrease learning opportunities for students"; "[e]ncourage the use of different and innovative teaching methods"; and "[p]rovide additional academic choices for parents and schools." 70 O.S. § 3-13 l(A). So that educators have the necessary freedom to accomplish these goals, the Act …

Appellant's Reply Brief, Zack Greenamyre, Gerald R. Weber Jr., John A. Meiser, Meredith Holland Kessler

Court Briefs

No. 23-10332
Rev. Stephen Jarrard v. Sheriff of Polk County

Appeal from the United States District Court for the Northern District of Georgia No. 4:20-cv-00002-MLB

From the Argument

A jury could easily find that Moats and Sharp excluded Jarrard from the ministry program because they disfavor his religious expression.

Brief Of Amici Curiae Eugene Volokh, Richard W. Garnett, & Michael Stokes Paulsen In Support Of Petitioner, Brian D. Schmalzbach, Richard W. Garnett

Court Briefs

No. 23-74
Debra A. Vitagliano v. County of Westchester, New York

On Petition for a Writ of Certiorari to the United States Court of Appeals for the Second Circuit

From the Summary of Argument

Even many steadfast supporters of abortion rights believed that the Court erroneously applied the First Amendment in Hill v. Colorado, 530 U.S. 703 (2000). As put bluntly by leading liberal scholar Professor Laurence Tribe, Hill was among the candidates for “most blatantly erroneous” decisions of the 1999 Term. Tribe added that the case was “slam- dunk simple” yet the Court got it “slam-dunk wrong.”

Pro-choice …