Supreme Court of the United States Commons^™

Francis Bacon Takes On The Ghouls: The "First Principles" Of Religious Freedom, Richard W. Garnett

Journal Articles

John Witte, Jr.
Religion and the American Constitutional Experiment:
Essential Rights and Liberties
Westview Press 2000

From the Review

This is a great time for students of the First Amendment's Religion Clauses and of what Professor John Witte calls the American "experiment" with religious freedom. We've been blessed these past few years with an in-print seminar - an upper-division offering, team-taught by faculty heavyweights - on this experiment, its products and prospects, and the values that have shaped it. Our teachers and texts have included, to name just a few, Professor Steven Smith's Foreordained Failure: The Constitutional Quest for a …

Brief Amici Curiae Of Christian Legal Society And The National Association Of Evangelicals In Support Of Respondent, Kimberlee Wood Colby, Gregory S. Baylor, Carl H. Esbeck, Richard W. Garnett, Michael Stokes Paulsen

Court Briefs

No. 99-138
Jenifer and Gary Troxel v. Tommie Granville

From the Summary of the Argument

Our argument that the decision below should be affirmed rests on a few basic points, none of which necessarily prejudices the case for a grandparent-visitation statute that is narrowly tailored to serve a compelling state interest. First, the statutes at issue are not grandparent-visitation statutes. Even if they were, the Petitioners and their amici have not pointed to any other visitation statutes that share the objectionable and unconstitutional features of Washington's particular statutes.

Brief Of The National Association Of Criminal Defense Lawyers As Amicus Curiae In Support Of Petitioner, Lisa Kemler, Richard W. Garnett

Court Briefs

No. 99-116
Jeffrey Allan Fischer v. United States of America

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

From the Summary of the Argument

We agree with the Petitioner that the Court of Appeals misread Section 666(b). Section 666 was designed to protect the integrity of federal funds by outlawing bribery in connection with the administration of those funds, and the plain meaning of the language the statute employs is adequate to achieve that purpose. The Court of Appeals, on the other hand, exploded the well defined limits that the statute's text imposes …

Brief Amicus Curiae Of The Society Of Catholic Social Scientists In Support Of Respondent, Stephen M. Krason, Richard W. Garnett

Court Briefs

No. 99-138
Jenifer Troxel v. Tommie Granville

On Writ Of Certiorari To The Supreme Court Of Washington

From the Summary of the Argument

The fundamental rights of parents to direct and control the upbringing of their children and the autonomy of the family have been recognized time and again by this Court. These rights and this autonomy are not creatures of positive law, but are grounded in the natural moral order. The family is the "building block" of civil society and has as its natural end, or telos, the nurturing and development of flourishing human persons and good citizens. …

Petitioners' Reply Brief, William H. Meub, Orland Campbell Jr., Richard W. Garnett, Michael Stokes Paulsen

Court Briefs

No. 99-628
Cynthia Andrews v. Vermont Department of Education

On Petition For A Writ Of Certiorari To The Vermont Supreme Court

From the Petitioners' Reply Brief

The question presented in this case is whether the First Amendment allows government to discriminate on the basis of religion in funding school-choice education programs that include private schools. In the Petition, we showed (1) that this issue is nationally important; (2) that this issue is recurrent; and (3) that this issue has generated extraordinary and pervasive conflicts among lower and federal state courts, and between decisions of lower courts and this Court.

Petition For A Writ Of Certiorari, William H. Meub, Orland Campbell Jr., Richard W. Garnett, Michael Stokes Paulsen

Court Briefs

No. 99-628
Cynthia and Douglas Andrews v. Chittenden Town School District

On Petition For A Writ Of Certiorari To The Vermont Supreme Court

From the Reasons for Granting the Writ

This is a case about discrimination - discrimination against "religious ideas, religious people, [and] religious schools." Board of Educ. of Kiryas Joel v. Grumet, 512 U.S. 687, 717 (1994) (O'Connor, J., concurring in part and concurring in the judgment). Vermont provides an immensely valuable benefit - tuition - to eligible residents and their high-school-age children. Petitioners have been denied this educational benefit solely because they have chosen a religious …

Scalia Slugs It Out, Gerard V. Bradley

Journal Articles

A Matter of Interpretation
Antonin Scalia, Princeton University Press, 1997, 159 pages, $20

Antonin Scalia, associate justice of the United States Supreme Court, has done more to combat judicial activism than any other living person. Since taking his seat on the High Court in 1986, he has defended and applied a mode of constitutional interpretation - most often called "originalism," sometimes "textualism" - the precise aim of which is to reduce, if not eliminate, judicial lawmaking. Scalia maintains that judges, even Supreme Court Justices, must distinguish what they think law ought to be from what the rule of law in …

Social Engineers With Jds, Gerard V. Bradley

Journal Articles

Stephen B. Presser: Recapturing the Constitution: Race, Religion, and Abortion Reconsidered. (Washington, DC: Regnery Publishing, 1994. Pp. xiv, 398. $24.95.)

With Recapturing the Constitution Steven Presser has launched a heat-seeking missile. It is, he confesses without contrition, "politically incorrect," "the same sort of exercise Allan Bloom was attempting in Closing of the American Mind" (pp. 12, 11). Presser aims to diagnose what ails our constitutional law as Bloom did our universities and culture. Presser argues that constitutional law is very sick indeed, and that it threatens to kill our body politic.

Deja Vu, All Over Again: The Supreme Court Revisits Religious Liberty, Gerard V. Bradley

Journal Articles

The Supreme Court is at it again. The justices are looking this term at two church-state questions which have long perplexed them. One is the yuletide baby-Jesus-in-the-public-square problem. This time, in the case of Pinette v. Review Board, a private group set up a Latin cross near the Ohio state capitol. This public space has long been used by all sorts of private speakers, including, it would seem, people with religious messages. The Knights of the Ku Klux Klan, Ohio Realm put up a sign disclaiming all public sponsorship. Was this still an "establishment" of religion? Federal appeals court …

Rethinking The New Deal Court, Barry Cushman

Journal Articles

The story of the "switch in time" is among the most enduring chapters of our constitutional history. It is repeated every year in countless courses in government, history, and constitutional law at the high school, college, and graduate level. One of the great morality plays of American civics, it is a tale both celebratory and cautionary. Its plot is simple, there are good guys and bad guys, and the good guys prevail in the end. Although no comprehensive monograph has been devoted to the subject exclusively, the literature recounting the story is vast and remarkably homogenous-indeed, repetitive. In truncated, composite, …

Enterprise And American Law 1836-1937. By Herbert Hovenkamp. Cambridge, Ma: Harvard University Press, 1991., Barry Cushman

Journal Articles

Book review of Enterprise and American Law 1836-1937 by Herbert Hovenkamp. Cambridge, MA: Harvard University Press, 1991

Slaying The Dragon Of Politics With The Sword Of Law: Bork's Tempting Of America, Gerard V. Bradley

Journal Articles

The Tempting of America by Robert Bork book review.

The Tempting Of America, Gerard V. Bradley

Journal Articles

THE TEMPTING OF AMERICA by Robert Bork. New York: The Free Press/Macmillan, 1990. Hdbd: pp. xiv-432.

In the concluding third of The Tempting of America Robert Bork recounts his unsuccessful fight to gain Senate confirmation to the Supreme Court.

Bork relates his war story to the rest of the book. In the first two-thirds of Tempting, he takes us on a grand tour of the Constitution's career, starting in the courts with Chief Justice John Marshall, on through the Civil War, Reconstruction, and New Deal eras. He finishes with a detailed examination of the Warren, Burger and Rehnquist Courts. …

Exorcizing Everson, Gerard V. Bradley

Journal Articles

Daniel Dreisbach: Real Threat and Mere Shadow: Religious Liberty and the First Amendment. Crossway Books. 351 pp. $15.00 (paper).

No aspect of constitutional law sports a bigger profile these days than that concerning religion, or "Church and state." Academics debate it prodigiously, lawyers litigate it furiously, and judges issue opinions on the subject with clockwork regularity. But this commotion is hardly esoteric. Pat Robertson's candidacy stirred everyone's emotions precisely because each of us has a strong sense of just how religious politics should be. George Bush clumsily attested to this popular sensitivity. What sustained bomber pilot Bush …

The Constitution, Religion, And American Public Life, Gerard V. Bradley

Journal Articles

From the Introduction

Even a nonspecialist familiar with all of the contiguous disciplines - religious studies, theology, all facets of American history, the history of Christianity, sociology of knowledge, even constitutional and legal history up to World War II - would never guess what American constitutional law of church and state really is. The temptation after reading the actual cases concerning church and state is to dismiss them as stupid. Church-state is the realm of "legendary inconsistencies," as one sympathetic scholar put it.

The sorriest scene in this legal wonderland is a recurring one, and plays in the public schoolroom. …

Review Essay: Liberalism And The Supreme Court, Donald P. Kommers

Journal Articles

In Liberalism and American Constitutional Law, Rogers M. Smith of Yale University takes stock of the American liberal tradition and its impact on the Supreme Court's constitutional jurisprudence. It argues that the tradition's political vision lacks philosophical coherence and that our constitutional law, by reflecting this incoherence, has failed to provide the legal community with a public philosophy suited to the needs of American society in the late twentieth century.His goal is to demonstrate the superiority of "rational liberty," both as a philosophical theory and practical guide to constitutional policymaking, over three major competing versions of liberal constitutionalism. To wit: …

The Supreme Court And The Constitution: The Continuing Debate On Judicial Review, Donald P. Kommers

Journal Articles

The three books reviewed in this essay are recent contributions to the growing literature of constitutional theory (Michael J. Perry, The Constitution, the Courts, and Human Rights (New Ha- ven: Yale University Press, 1982); Sotirios A. Barber, On What the Constitution Means (Baltimore and London: The Johns Hopkins University Press, 1984); and John Agresto, The Supreme Court and Constitutional Democracy (Ithaca: Cornell University Press, 1984). They explore important questions about the role of the Supreme Court and the meaning of the Constitution.

Aussergesetzliche Masstabe In Der Rechtspreching Des Supreme Court Der Vereinigten Staaten, Donald P. Kommers, Kenneth Ripple

Journal Articles

Zweck der folgenden Ausführungen ist die Darlegung der Bedeutung außergesetz licher Urteilsmaßstäbe in der amerikanischen Verfassungsrechtsprechung. Dabei sollen vor allem diejenigen Urteilskriterien untersucht werden, die den größten Einfluß auf das amerikanische Verfassungsrecht haben dürften; sie sollen im Kontext des gegen wärtigen case law untersucht werden.

The Value Of Comparative Constitutional Law, Donald P. Kommers

Journal Articles

The publication of an English translation of a notable decision by a major foreign tribunal' is a fitting occasion on which to discuss the value of comparative constitutional law as a subject of academic study and as a legal discipline of valid current applicability. When referring to comparative constitutional law, I am speaking mainly of case law and most particularly of judicial decisions handed down by national tribunals empowered to review the constitutionality of legislative and executive acts.

Brief Amicus Curiae, Urging Reversal, On Behalf Of - John J. Russell, Bishop Of Richmond; Lawrence Cardinal Shehan, Archbishop Of Baltimore; Paul A. Hallinan, Archbishop Of Atlanta; Philip M. Hannan, Archbishop Of New Orleans; Robert E. Lucey, Archbishop Of San Antonio; Joseph B. Brunini, Apostolic Administrator Of Natchez-Jackson; Lawrence M. Defalco, Bishop Of Amarillo; Joseph A. Dirick, Apostolic Administrator Of Nashville; Thomas K. Gorman, Bishop Of Dallas-Ft. Worth; Joseph H. Hodges, Bishop Of Wheeling; John L. Morkovsky, Apostolic Administrator Of Galveston-Houston; Victor J. Reed, Bishop Of Oklahoma City And Tulsa; L. J. Reicher, Bishop Of Austin; Thomas Tschoepe, Bishop Of San Angelo; Ernest L. Unterkoefler, Bishop Of Charleston; Vincent S. Waters, Bishop Of Raleigh; The National Catholic Conference For Interracial Justice; And The National Catholic Social Action Conference, William M. Lewers C.S.C, William B. Ball

Court Briefs

No. 395
Richard Perry Loving v. Commonwealth of Virginia

On Appeal from the Supreme Court of Appeals of Virginia

From the Summary Statement of the Case

Appellants, Richard Perry Loving and Mildred Jeter Loving, were convicted on January 6, 1959, in the Circuit Court of Caroline County, Virginia, under an indictment charging that "the said Richard Perry Loving being a White person and the said Mildred Delores Jeter [Loving] being a Colored person, did unlawfully and feloniously go out of the State of Virginia, for the purpose of being married and with the intention of returning to the State of …

The Supreme Court, Politics, And Modern Society, Donald P. Kommers

Journal Articles

Donald P. Kommers reviews Charles S. Hyneman's The Supreme Court on Trial (New York: Atherton Press, 1963).