Supreme Court of the United States Commons^™

Is Originalism Orthodoxy?, Neel Sukhatme

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What theory of constitutional interpretation has the Supreme Court followed? We search Supreme Court opinions for a wide range of sources that originalists identify as central to their methodology, over the entire universe of cases beginning in 1791. We find that for much of Supreme Court history, conventional indicators of originalist practice--citations to Founding-era sources--are largely absent, raising questions about originalism's past orthodoxy. Originalist citation practices are absent for much of the 19th century and grow sharply in the late 20th century. The Article elaborates the implications of these findings for debates in constitutional law.

Abundance And The Supreme Court, Nicholas Bagley

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Scarcity mars much of American life. Housing prices in our most productive cities are out of control. The nation’s transportation infrastructure is aging and obsolete because it costs so much more to build here than in other developed countries. Meanwhile, China generates nearly three times as much solar energy as the United States, with the gap growing every year.

Why does the richest nation in the history of the world struggle so mightily to get stuff done? That’s the question that propels Ezra Klein and Derek Thompson’s 2025 bestseller Abundance, which galvanized what may be the hottest and most controversial …

Exploring The Limits Of Qualified Immunity Under Harlow’S Discretionary Function Test, James E. Pfander, Alexander A. Reinert

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No abstract provided.

Vaccines, Religious Liberty, And The Gvr As Doctrinal Signal, Zalman Rothschild

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This Essay proceeds in four Parts. Part I traces the doctrinal baseline, showing that vaccines have long functioned as the limit case for religious liberty. Part II briefly describes the doctrinal changes of the COVID-19 era — the Supreme Court’s expansion of religious equality doctrine, and its emergency-docket denials that left vaccine mandates formally unresolved — before explaining why the GVR in Miller signals a different move: the extension of the religious liberty framework to vaccine mandates, bypassing the comparability analysis that had allowed most courts to sustain them under the equality model. Part III turns to Miller itself and …

Property Rights V. Taxpayer Rights: The Battle Over Tax Foreclosures, Stewart E. Sterk

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No abstract provided.

Style And Substance: A Review Of Jill Barton's The Supreme Guide To Writing, Christina Frohock

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No abstract provided.

Standard Textualism, James A. Macleod

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For as long as legal scholars have been writing about the rules-versus-standards distinction, textualism has been understood to produce characteristically rule-like law. This Article argues for the opposite view. Far from generating the “law of rules” that Scalia famously envisioned, the rule of modern textualism produces a law of standards—much more so than anybody, proponent of textualism or critic, appears to have recognized.

Two aspects of today’s textualism produce this result. The first is its emphasis on ordinary language and communication. Modern textualism typically produces standards because ordinary language and communication are typically standard-like. The second is modern textualism’s drive …

Rico V. United States, Meagan R. Hurley

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Isabel Rico was serving a term of supervised release when she absconded from federal supervision. Years later, the government sought to revoke her release, arguing that her fugitive status “tolled” her supervised-release term. The Ninth Circuit agreed. Other circuits, however, have rejected the fugitive-tolling doctrine in the supervised-release context. The Supreme Court will now decide whether federal courts may judicially adopt fugitive tolling, or whether Congress’s silence in the supervised-release statute forecloses it.

Burdens Of Proof In Criminal Procedure, Eve Brensike Primus

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The Supreme Court’s haphazard approach to allocating burdens of proof in criminal procedure has created a system in which constitutional rights can be rendered meaningless simply because defendants are required to prove things they cannot possibly know. Even though allocations of the burden of proof often drive litigation outcomes, the Court has failed to establish clear burden allocation structures for cases arising under the Fourth, Fifth, Sixth, and Fourteenth Amendments, leaving lower courts split about how to allocate the burdens. When the Supreme Court does allocate burdens, it often does so without explanation or consideration of key factors. Recent Supreme …

Constitutional Futurism As Pedagogy, Jeremiah Chin

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Constitutional Law has transformed from a course on history to a discussion of current events. Cases like Students for Fair Admissions v. Harvard College, Dobbs v. Jackson Women’s Health Organization, and Loper Bright Enterprises v. Raimondo reveal that the study of constitutional law is not a static, or even linear, discussion of constitutional text and history. Law is a shifting, changing enterprise that reflects social constructions of power, authority, and identity. How do we teach, learn, and understand constitutional law that is so laden with history, riddled with theories of consistency and adherence to precedent, but ultimately subject …

Constitutional Futurisms, Jeremiah Chin

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How do we reckon with the past? The Supreme Court’s recent embrace of originalism as a mode of constitutional analysis relies almost exclusively on a view of history and tradition that would bind us to an understanding of principles and ideals that legitimized the exclusion of minority voices. Cases such as New York State Pistol and Rifle Ass'n v. Bruen use flavors of originalism as a framework to define rights and governmental powers through their historical antecedents, but this broad standard of interpretation is notably absent in the Court’s recent discussions of histories and traditions of racism in the United …

The Supreme Court’S Old Habits In A New Era? Native Nations, Statehood, And An Indigenous-Led Future For Natural Resources, Monte Mills

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art I of this essay looks back and, relying on Winans and Winters, illustrates the Court’s longstanding commitment to a recognition of tribally reserved rights while requiring a collaborative approach that acknowledges some state interest and authority. Part II then briefly assesses the modern era of Indigenous leadership in natural resources, reviewing the ways in which Native Nations are implementing a new framework of collaborative stewardship for lands, waters, wildlife, and other ecological systems. Finally, Part III considers how the lessons or impacts of this broader movement might be relevant in future conflicts raising questions of statehood and tribal …

Rivers V. Guerrero, Meagan R. Hurley

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Danny Rivers sought federal habeas relief, arguing that his trial counsel was ineffective. Rivers’s petition was denied, but while his initial habeas appeal was pending, he initiated a second filing to include new information that his prior counsel failed to utilize in an exculpatory report supporting his innocence. Applying 28 U.S.C. § 2244(b)(2), the district court determined it was “without jurisdiction to entertain” the new evidence because Rivers’s filing was a “second or successive” petition. The Fifth Circuit of Appeals agreed.

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

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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 …

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

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The symposium examines the Supreme Court's recent trend of overturning precedent, arguing that this practice undermines the principle of *stare decisis* and the Court's legitimacy. Historically, the Court has used precedent to protect marginalized groups, but recent decisions suggest a shift toward benefiting non-marginalized interests, such as big businesses and conservative groups. This change is seen as a departure from the Court's traditional role and raises concerns about judicial humility and the politicization of the judiciary.

Consensus And Conflict Over Context: Select Criminal Law And Procedure Cases From The Supreme Court's 2024-25 Term, Eve Brensike Primus, Elena Schultz

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In its 2024-2025 Term, the Supreme Court emphasized the utility—and necessity—of context-based, fact-sensitive analyses throughout its criminal law and procedure cases. Though the Justices sparred over how to derive meaning from factual, structural, legal, and historical contexts, they tended to agree that courts should not be artificially restricted from considering the breadth of the record before them.

The New Substantive Due Process, Leah M. Litman

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After the Supreme Court overruled Roe v. Wade, commentators made much about the possible demise of substantive due process—the idea that the Constitution safeguards certain substantive liberties that are not specifically or explicitly spelled out in the Constitution. Judges and scholars are debating which substantive due process decisions are next on the chopping block and whether the entire domain of substantive due process is in jeopardy. But a curious thing happened as the Court scaled back and openly questioned the traditional individual-rights line of substantive due process: Rather than eliminating it entirely, the Court seems to have transposed it elsewhere. …

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

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The article critically examines the erosion of stare decisis under the Roberts Court, highlighting concerns about the Supreme Court's increasing willingness to overturn established precedents. While acknowledging the importance of stare decisis in maintaining stability and equality, the author argues that its practical value is being undermined by ideological polarization and a departure from traditional legal reasoning. The article questions the Court's recent approach to precedent, particularly in cases like Dobbs v. Jackson Women's Health Organization and Students for Fair Admissions v. Harvard, and critiques the conservative majority's aggressive use of judicial power.

Statutory Liquidation, Daniel Deacon

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When might practice by the political branches settle the meaning of legal text? That question has mostly been taken up in the constitutional setting, with one strand of scholarship taking inspiration from Madison's statement in Federalist No. 37, that "{a}ll new laws ... are considered as more or less obscure and equivocal until their meaning be liquidated and ascertained by a series ef particular discussions and aqjudications." The prospect that post-enactment practice might liquidate the meaning of statutory text has been comparatively underexamined. That's not surprising. Under modern textualism, post-enactment considerations would seem to have little place. And under Chevron …

Notice Pleading’S Quiet Return, Alexander A. Reinert

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Fifteen years ago, the Supreme Court announced two significant civil procedure decisions – Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009). Together, Iqbal and Twombly marked a new approach to pleading in federal courts. No longer would courts apply the forgiving notice pleading standard, in force since the 1938 adoption of the Federal Rules of Civil Procedure. In its place, the Court introduced plausibility pleading, inviting district courts to apply their “judicial experience and common sense” to decide whether a claim was “plausible.” Commentators expressed alarm, predicting that the new standard …

Tossing Sand In The Regulatory Gears: Hurdles To Policy Progress In The Supreme Court, Nina A. Mendelson

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In the last few years, the Supreme Court has been a source of seismic change. In Dobbs v. Jackson Women’s Health Organization, the Court overruled Roe v. Wade, which had protected the right to abortion for nearly fifty years. In Loper Bright Enterprises v. Raimondo, the Court abandoned so-called Chevron deference to particular categories of administrative agency interpretations, a doctrine viewed as bedrock for over forty years. Humphrey’s Executor v. United States, the 1935 ruling validating independent multi-member commissions such as the Federal Trade Commission, Securities and Exchange Commission, and Federal Communications Commission, may soon join the others on the …

The Origins Of The Major Questions Doctrine, Rachel Rothschild

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In a series of recent cases, the Supreme Court has invoked the newly named “major questions doctrine” to strike down agency regulations that protect public health and the environment. Several Justices have argued that while the name “major questions” may be new, these decisions are simply the latest iteration in a longstanding effort of the courts to curtail the explosive growth of the administrative state since 1970. The first paradigmatic example of this line of cases is the 1980 “Benzene” case, in which the Supreme Court set aside the Occupational Safety and Health Administration (OSHA)’s new workplace standards for the …

Sidestepping Substance: How Administrative Law Plays An Outsized Role In Shaping Environmental Policy And Why Recalibration Is Necessary, Sanne H. Knudsen

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Administrative law and environmental law are companion fields. Still, they are not interchangeable. They promote different values. And yet, sometimes when courts resolve environmental disputes by relying on administrative doctrines, courts elevate the values of administrative law over those codified in environmental statutes. This is particularly concerning when courts rely on judicially-created administrative law doctrines to sidestep congressional intent as expressed by the substantive aims of environmental statutes.

To reduce the risk of sidestepping—whether inadvertent or intentional—this Article critically examines how administrative law doctrines can undermine environmental law. Drawing on prominent case examples, including the Supreme Court decision in Sackett …

Unprincipled All The Way Down, Wilfred U. Codrington Iii

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In 2006, the Supreme Court issued an emergency stay order in Purcell v. Gonzalez. Sparing in words and inattentive to the realities on the ground, the opinion nevertheless made a reasonable and understandable assertion: prior to issuing relief, courts presiding over elections should take into account any harms that judicial orders might cause, particularly in the lead-up to voting, alongside other considerations unique to elections. The statement was general enough to mollify the masses in the short-term. But over the long haul, it has proven to be a vehicle through which important election decisions might be made in less than …

Reconciling Riverside Bayview Homes, Sackett, And County Of Maui, Stephen Johnson

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Near the end of the 2022 term, the Supreme Court issued its decision in Sackett v. EPA. The case has been described as "the most important Clean Water Act case the Court has ever decided, and ... probably ... one of the most impactful environmental decisions in the Court's history."  For the fourth time, the Court interpreted the meaning of the term "navigable waters" in the Clean Water Act (CWA), and the Sackett Court narrowed the interpretation of the term in a manner that critics claim will eliminate federal protection for more than 50% of the wetlands in the United …

A Fractured Supreme Court: Select Criminal Law And Procedure Cases From The Supreme Court’S 2023-24 Term, Eve Brensike Primus, Jordan Schuler

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In its 2023-2024 Term, the Supreme Court outlined the contours of when a former President of the United States would be immune from criminal prosecution; issued important decisions interpreting the scope of the Cruel and Unusual Punishments Clause, the Double Jeopardy Clause, the Confrontation Clause, and the Second Amendment right to bear arms; decided a number of important statutory interpretation cases; and continued to avoid Fourth Amendment issues, only addressing them in the context of a malicious prosecution charge. Perhaps more striking than the Court’s decisions in these cases, though, was the Justices’ lack of consensus. Of the 16 criminal …

Tying Law For The Digital Age, Daniel A. Crane

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Tying arrangements, a central concern of antitrust policy since the early days of the Sherman and Clayton Acts, have come into renewed focus with re-spect to the practices of dominant technology companies. Unfortunately, tying law’s doctrinal structure is a self-contradictory and incoherent wreck. A con-ventional view holds that this mess is due to errant Supreme Court precedents, never fully corrected, that expressed hostility to tying based on faulty economic understanding. That is only part of the story. Examination of tying law’s origins and development shows that tying doctrine was built on a now-dated paradigm of what constitutes a tying arrangement. …

Congress And Shifting Sands In Administrative Law., Christopher J. Walker

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In recent years, we have seen an anti-administrativist turn in the federal judiciary, with the Supreme Court limiting agency power in important respects. These shifting sands in administrative law seem to be motivated, at least in part, by the Court’s perception of the rise of presidential administration and decline in legislative activity. As part of the Widener Commonwealth Law Review Judging in Administrative Law Symposium, this Essay assesses how the Court has responded to concerns about over-presidentialism and then sketches out several ways Congress can respond to reassert itself in federal lawmaking.

Two Takes On Administrative Change From The Roberts Court, Daniel Deacon, Leah Litman

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In Loper Bright Enterprises v. Raimondo, the Supreme Court finally did what many long hoped (or feared) it would do: overrule Chevron v. Natural Resources Defense Council. Chevron instructed courts to defer to an agency’s interpretation of an ambiguous statutory provision, provided the interpretation was reasonable. Chevron, according to Justice Kagan, had “served as a cornerstone of administrative law” and “the warp and woof of modern government, supporting regulatory efforts of all kinds—to name a few, keeping air and water clean, food and drugs safe, and financial markets honest.” Not surprisingly, statutes governing such matters contain quite a number of …

Unprecedented Precedent And Original Originalism: How The Supreme Court’S Decision In Dobbs Threatens Privacy And Free Speech Rights, Leonard Niehoff

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The U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization has drawn considerable attention because of its reversal of Roe v. Wade and its rejection of a woman’s constitutional right to terminate her pregnancy. The Dobbs majority, and some of the concurring opinions, emphasized that the ruling was a narrow one. Nevertheless, there are reasons to think the influence of Dobbs may extend far beyond the specific constitutional issue the case addresses.

This article explains why Dobbs could have significant and unanticipated implications for the law of privacy and the law of free expression. I argue that two …