Supreme Court of the United States Commons^™

Is Bruen The New Usery?, Tonja Jacobi, Cory Conley

William & Mary Law Review

In 2022, in New York State Rifle & Pistol Ass’n v. Bruen, the Supreme Court revolutionized the Second Amendment, achieving the long-held conservative goal of limiting gun restrictions by imposing an expansive, originalist view of the right to bear arms. However, within just three years, Bruen is showing cracks. Lower court judges are struggling mightily to apply it and are expressing their frustrations in exceptionally frank ways. And already the Supreme Court, in Rahimi v. United States, was forced to reconsider its approach. The Court has been here before, when it tried to revitalize the Tenth Amendment in …

Constitutional Structure And Election Law, Manoj Mate

William & Mary Bill of Rights Journal

Since Bush v. Gore, scholarship on election law has centered on a theoretical debate between rights-based and structural theory approaches, and the appropriate role and scope of judicial intervention in election law cases. However, these debates have not fully assessed the degree to which the Court’s approach to constitutional structure has fundamentally reshaped election law. Over the past two decades, the Court has increasingly emphasized the importance of constitutional structure-based approaches in election law cases.

This Article analyzes these dynamics and advances a typology of constitutional structure-based approaches in election law. Drawing on scholarship on modalities of interpretation and …

Free Speech Trapped In Amber: The Rise Of The 'History And Tradition' Test, From Unregulated Guns To Highly Regulated Speech, Matthew D. Bunker, Emily Erickson

William & Mary Bill of Rights Journal

An insidious virus appears poised to invade First Amendment free speech doctrine. “History and tradition,” a deeply flawed variant of originalism, threatens to transform speech law from a rational enterprise, employing tiers of scrutiny to evaluate potential infringements on speech, to a random scavenger hunt through the distant past that could upend numerous vital First Amendment principles.

Traditionalism’s ascendence to the forefront of history-centric constitutional interpretation was heralded in three dramatic cases decided at the end of the U.S. Supreme Court’s October 2021 term. New York State Rifle & Pistol Ass’n v. Bruen elicited particular concern among First Amendment scholars, …

Confronting Imitation: Questioning Fair Use After Warhol, Genevieve Stegner-Freitag

William & Mary Bill of Rights Journal

The Constitution’s Intellectual Property Clause (IP Clause) contains a mandated goal of “progress” for copyright. Efforts to address what progress means move between some understanding it to be a specific Enlightenment-oriented term, progress as a forward-moving, Judeo-Christian ideal, to others viewing the term as strictly economic, understanding the goal of copyright is to get as many different products in the market as possible. Defining what progress means in copyright law is a necessary step, as courts are increasingly considering market forces in granting or denying authorial property rights. This Note addresses what progress means, how imitative art factors in, and …

Grants Pass And The Innocence Limit, Gregory Cui, Emily Clark

William & Mary Law Review

This Article examines City of Grants Pass v. Johnson as an important development in the Supreme Court’s doctrine concerning the Constitution’s “innocence limit.” This limit is a fundamental boundary on the state’s power to punish; it provides that criminal punishment may only apply to that which is morally culpable or blameworthy and thus may not apply to wholly innocent conduct. This principle was famously expressed in Robinson v. California, but this Article identifies a broader network of cases in which the Court has consistently effectuated the innocence limit and intervened against prosecutions of the innocent. This Article observes that …

Skrmetti And The Problem Of Incidental Intent, Martin Katz

William & Mary Law Review

The modern Supreme Court has defined “discriminatory intent” as a strict-liability concept. It does not matter why the government sorts people by a protected characteristic, such as race or sex; it matters only that the government does sort people by such a characteristic. This principle is the key holding of affirmative-action cases, such as Students for Fair Admissions, Inc. v. President & Fellows of Harvard College. Yet, in the recent case United States v. Skrmetti, the Court seemed to focus not on the question of whether the government sorted people by sex (it did), but on the question …

Firearms And Fora: Constructing Public Carry Doctrine, Timothy Zick

Faculty Publications

Where can a person lawfully carry firearms in public? Under what conditions can they do so? Now that the Supreme Court has formally recognized a Second Amendment right to public carry, these are among the most important unresolved questions regarding the right to bear arms. The Second Amendment’s public carry doctrine is in its infancy. How the doctrine develops will have a profound impact on the exercise of Second Amendment rights in public places and on the public square. Integrating a new constitutional right into the public square is not a novel problem. After the Supreme Court recognized First Amendment …

Textualism Wins?: The Supreme Court’S 2024 Labor & Employment Law Cases, Nicole B. Porter

Faculty Publications

The Supreme Court decided five primary labor and employment law cases in 2024—two discrimination cases, two arbitration cases, and one labor law case. This article also discusses a sixth case, Loper Bright Enterprises v. Raimondo, because it will undoubtedly affect labor and employment law despite the facts and underlying issue having nothing to do with the workplace.

I was initially underwhelmed with this year’s cases. None of them addresses any major substantive labor and employment law issue. However, upon further consideration, the cases are noteworthy for three reasons. First, three of them are pro-plaintiff with outcomes that benefit workers— …

Original Public Meaning And The Rule Of Recognition, Andrew Jensen Kerr

William & Mary Bill of Rights Journal

Framer intent no longer possesses the same cachet it once held. But Framer influence still matters for public meaning originalism, particularly for communications like The Federalist Papers, in which Alexander Hamilton, John Jay, and James Madison marketed the work of the Philadelphia Constitutional Convention to state ratifying conventions and the constituencies they represented. Contemporary originalists posit that what the Constitution meant to this public audience at the time of ratification is cemented in time forever (the fixation thesis). The starting point for my analysis is the prosaic observation that our Framers occasionally changed their minds about the meaning of …

Animus, Again, William D. Araiza

William & Mary Bill of Rights Journal

In the first week of his second term, President Donald Trump issued multiple executive orders targeting immigrants and transgender people. Additional actions targeting these and other vulnerable groups have already followed. Others may come; more generally, such orders will likely remain a part of the President’s policy agenda and governing style. These actions call for analysis of the legal tools litigants can deploy to challenge them. That call is urgent, as a response not just to the orders already issued, but to others the Administration might promulgate in the future.

One of those tools is equal protection animus. This Article …

Domestic Military Deployments After Trump V. United States, Chris Mirasola

William & Mary Law Review

The current legal regime governing domestic military deployments was, largely, born of the Civil War. While conflict was ongoing, Congress enacted what are now a pair of statutes criminalizing military interference with federal elections. And as a coda to Reconstruction, Congress criminalized using the military as a civilian law enforcement force. Over the past 160 years, successive Congresses and Presidents have steadily chipped away at these crucial criminal-law protections. In 2024, the Supreme Court’s decision in Trump v. United States further undermined the limitations that remained.

In Trump, the Supreme Court held that Presidents enjoy, at minimum, a presumption …

2025 Supreme Court Preview Digital Notebook, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

Understanding Dobbs V. Jackson Women's Health Organization: How The Modern Supreme Court Broke From Tradition And Changed The Original Meaning Of Due Process, Matthew W. Lunder

William & Mary Bill of Rights Journal

What follows here describes and criticizes the modern liberal and conservative approaches to substantive due process. Part I shows how substantive due process came about in the mid-twentieth century as the union of two extant doctrines: incorporation and fundamental rights. Part II then describes how modern conservatism used the doctrine to arrive at the deeply rooted-in-history-and-tradition test and shows the deliberate reconfiguration of the jurisprudence during the latter twentieth century into the novel patchwork of the modern-conservative method applied in Dobbs. Part III offers a contrast, describing and explaining the traditional due-process analysis of medieval origin and the concept of …

Bostock And The Limits Of Textualism: A Doctrinal Structuralist Approach, Martin Katz

William & Mary Law Review

In Bostock v. Clayton County, the Supreme Court held that Title VII prohibits discrimination based on sexual orientation or gender identity. This result, the majority claimed, was required by the interpretive theory called textualism. But textualist Justices in the dissent vehemently disagreed. This split, and the controversy that has followed it, has had two consequences. First, it added fuel to the ongoing debate about the value of textualism. Second, it opened the door for lower courts to decline to apply Bostock to similar antidiscrimination laws, such as Title IX in education or the Equal Protection Clause.

This Article argues …

Dobbs And The New Doctrine Of Stare Decisis, Russell A. Miller

William & Mary Bill of Rights Journal

Alongside the historic and troubling annulment of the half-century-old Substantive Due Process right to abortion, Dobbs produced another significant outcome. To get its substantive constitutional law result, the Court’s majority also had to reconceive—and significantly weaken—the doctrine of stare decisis. This was necessary because, following Planned Parenthood of Southeastern Pennsylvania v. Casey, the constitutional right to abortion largely depended on respect for precedent as the basis for its survival. To overturn Roe, the Dobbs majority had to blast through the established practice of precedent and articulate a new doctrine of stare decisis. It seems that precedent …

Brown Now: The Surprising Possibility Of Progressive Reform, Louis Michael Seidman

William & Mary Law Review

For four decades, the Supreme Court has engaged in a determined, systematic, and successful effort to transform and tame Brown v. Board of Education. But there is a surprising counterweight to this standard narrative. If one takes modern doctrine seriously, the Supreme Court’s refashioning of Brown has the potential to support some progressive goals. The modern Court’s decisions provide a basis for upholding race-conscious but facially neutral measures that promote racial diversity, striking down legacy admission standards in colleges and universities, and strictly scrutinizing laws that discriminate based on sexual orientation. The last Part of this Article speculates about …

Why You Cannot Find A Swing Justice When You Really Need One, Neal Devins

William & Mary Law Review

From Richard Nixon’s 1972 appointment of swing Justice Lewis Powell until Donald Trump’s 2018 appointment of Brett Kavanaugh (to replace swing Justice Anthony Kennedy), the swing Justice ruled the roost. Sometimes voting with the Court’s conservatives and other times with its liberals, the swing Justice often cast the deciding vote and often embraced a sui generis middle ground. Those days now seem like a distant memory. An ideologically simpatico majority coalition drives the post-2018 Roberts Court (especially after Justice Amy Coney Barrett filled Justice Ruth Bader Ginsburg’s seat in 2020). In this Article, I will use the Court’s affirmative action …

Supreme Court Preview 2025 (Flyer), Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

Understanding The Mechanisms Of Interpretative Change, Aaron-Andrew P. Bruhl

Faculty Publications

Interpretive methodology changes over time, and we appear to be in a period of particular ferment. In federal statutory interpretation, which is the focus of this Article, several important changes in interpretive methods have occurred in recent decades or are underway. There has been a gradual, decades-long shift away from intentionalist tools like legislative history. In addition, as the culmination of a series of smaller steps, the Supreme Court has just reshaped the doctrine governing deference to agency interpretations, a move that will require years of further clarification. And, although this shift is still taking shape, it appears that some …

What Did Gitlow Do?, James Y. Stern

Faculty Publications

Gitlow is generally regarded as the first modern incorporation case, the genesis of both federal free speech curbs on state action and the larger project of making the same limitations that the federal Constitution imposes on the federal government applicable to the states. In both respects, moreover, it can also be seen as an important milestone in the larger twentieth century transformation of federal court practice and constitutional understanding centered on the assertion of individual rights. That linkage is no accident. For all the talk about federalism and state sovereignty in the U.S. Reports, the modern jurisprudence of constitutional rights …

The Case Of The Missing Case: How Neglecting Chisom V. Roemer Leaves § 2 Of The Voting Rights Act Analytically At Sea, James F. Blumstein

William & Mary Law Review Online

This article critiques the Supreme Court's decision in Allen v. Milligan for relying solely on Thornburg v. Gingles and overlooking Chisom v. Roemer, a key precedent interpreting § 2 of the Voting Rights Act. Chisom established that vote dilution claims must be tied to unequal access to the political process, not just electoral outcomes. By ignoring this linkage, the Court risks turning § 2 into a vehicle for race-based electoral entitlements. The author argues that reaffirming Chisom is essential to preserving the statute’s process-focused intent and analytical clarity.

This abstract was written using generative artificial intelligence.

We Are All Cafeteria Originalists Now (And We Always Have Been), Jack M. Balkin

William & Mary Bill of Rights Journal

In Memory and Authority, I argue that Americans, both in politics and in constitutional culture, are "‘cafeteria originalists.’ They pick and choose when to follow the views of the founders, framers, or adopters (as they understand them) and often artfully recharacterize these principles to support contemporary political and legal arguments.” Like customers in a cafeteria who take the chocolate cake and leave the boiled kale, Americans pick the features of the framers they like to support their arguments, and leave other, less savory, features behind.

[...]

My central claim is that cafeteria originalism is not a pathology or a …

The Griffin's Case Phenomenon And The Problem Of Historical Knowledge In Legal Arguments, Rachel A. Shelden

William & Mary Bill of Rights Journal

The sudden relevance of a formerly little-known historic case is surely not new; much of legal history is necessarily about discovery and rediscovery of the past. Still, I think the clarity with which we can outline the development of the Griffin’s Case phenomenon offers an opportunity to think carefully about the role of history in constitutional conversation. What follows, then, is a short exploration of the case’s recent (re)entry into our historical consciousness. Tracing this phenomenon highlights (at least for me) some potential difficulties embedded in the interaction between legal advocacy and what we know about the past.

This abstract …

The Fourteenth Amendment And The Vénus Noire, Farah Peterson

William & Mary Law Review

This Essay makes two points. The first is that originalism is not a promising path for progressive causes. The second is that as the Constitution is amended, the meaning of the entire document is altered, and earlier text should be interpreted in light of what has changed. But instead of making these observations in the usual law review style, I’m calling on a figure out of nineteenth-century art, the Vénus Noire, to serve as our companion and guide.

This abstract has been taken from the author's introductory paragraphs.

Identity And Procedural Subordination In Lgbtq Religious Exemption Cases, Kyle C. Velte

William & Mary Journal of Race, Gender, and Social Justice

This Article proceeds in four Parts. Part I summarizes the legal literature on procedural injustice. Part II briefly describes the white Christian nationalism movement, its connection with the LGBTQ civil rights movement, and contends that it is an identity-based movement akin to traditional identity-based civil rights movements. Part III summarizes the holdings of the Religious Exemptions Trilogy [Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, Fulton v. City of Philadelphia, and 303 Creative LLC v. Elenis] and makes the argument that they are strongly procedural decisions. Part IV contends that the Court has engaged in identity-based …

2024 Supreme Court Preview Digital Notebook, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

Waiting For Mahanoy: Examining The Still-Unsettled Jurisprudence Of Online Student Speech, Emily Erickson, Matthew D. Bunker

William & Mary Bill of Rights Journal

This Article first explores the constitutional background of student speech rights, beginning with the Tinker decision and continuing through early court attempts to analyze online, off-campus cases. Next, it examines Mahanoy itself, unpacking the frustratingly murky majority opinion written by Justice Stephen Breyer. The Article then breaks new ground by exploring court decisions in the years since Mahanoy, as jurists continue trying to identify First Amendment boundaries in student speech cases involving bullying, threats, and otherwise offensive speech. A concluding section synthesizes the state of the law and offers perspectives on this vital area of constitutional concern.

This abstract …

303 Creative Llc, Public Accommodations Law, And The Many Possible Futures Of Rights, Jacob Eisler

William & Mary Bill of Rights Journal

The unifying theme of the contributions to this Collection of Essays on 303 Creative LLC, which emerged from a panel held at the 2024 American Association of Law Schools meeting, is that while 303 Creative LLC may have brought these themes forward, their full expositions lie in the hands of Supreme Court jurisprudence that is yet to come...

In exploring these possibilities, this Collection seeks to anticipate what might come next for both the First Amendment and public accommodations law.

This abstract has been taken from the author's introduction.

The Limits Of Lochnerism, Lucien Ferguson

William & Mary Bill of Rights Journal

The Lochnerism thesis is among the most influential constitutional theories to emerge in recent years. It argues that the judiciary increasingly protects private business from public regulation by enshrining and expanding liberty of contract rights under the First Amendment. Using 303 Creative LLC v. Elenis as a case study, this Essay explores the limits of Lochnerism as a theoretical framework. It argues that, while productively illuminating the judiciary’s attack on the administrative state and democratic processes, the theory may also displace concerns over the concrete harms experienced by vulnerable communities. To bring these harms back into view, this Essay suggests …

Standpoint Epistemology, The First Amendment, And University Affirmative Action, Paul Gowder

William & Mary Bill of Rights Journal

Egalitarian legal scholars understandably might have been troubled by the end of June 2023, when, on two successive days, the Supreme Court appeared to put an end to public as well as to private university affirmative action on a theory of race discrimination in Students for Fair Admissions v. Harvard, then appeared to put an end to the application of anti-discrimination law to any private enterprise that could be characterized as “expressive” in 303 Creative LLC v. Elenis. Yet the June 30 case, I shall contend, has the potential to undermine the negative impact of the June 29 …