Supreme Court of the United States Commons^™

Meta Rules For Ordinary Meaning, Anita S. Krishnakumar

Faculty Publications

(Excerpt)

“Ordinary meaning” is a notoriously undefined concept in statutory interpretation theory. Courts and scholars sometimes describe ordinary meaning as the meaning that a “reasonable reader” would ascribe to the statutory language at issue, but it remains unclear how judges and lawyers should go about identifying such meaning. Over the past few decades, as textualism has come to dominate statutory interpretation, courts increasingly have employed dictionary definitions as (purportedly) neutral, and sometimes dispositive, evidence of ordinary meaning. And in the past few years especially, some judges and scholars have advocated using corpus linguistics — patterns of usage across various English …

Cracking The Whole Code Rule, Anita S. Krishnakumar

Faculty Publications

Over the past three decades, since the late Justice Scalia joined the Court and ushered in a new era of text-focused statutory analysis, there has been a marked move towards the holistic interpretation of statutes and “making sense of the corpus juris.” In particular, Justices on the modern Supreme Court now regularly compare or analogize between statutes that contain similar words or phrases—what some have called the “whole code rule.” Despite the prevalence of this interpretive practice, however, scholars have paid little attention to how the Court actually engages in whole code comparisons on the ground.

This Article provides the …

Attribution Time: Cal Tinney’S 1937 Quip, “A Switch In Time’Ll Save Nine”, John Q. Barrett

Faculty Publications

In the history of the United States Supreme Court, 1937 was a huge year—perhaps the Court’s most important year ever.

Before 1933, the Supreme Court sometimes held that progressive policies enacted by political branches of government were unconstitutional. Such decisions became much more prevalent during President Franklin D. Roosevelt’s first term, from 1933 through 1936. In those years, the Court struck down, often by narrow margins, both federal “New Deal” laws and state law counterparts that sought to combat the devastation of the Great Depression.

Then, in early 1937, President Roosevelt proposed to “pack”—to enlarge—the Court, so that it would …

Rejecting Honorary Whiteness: Asian Americans And The Attack On Race-Conscious Admissions, Philip Lee

Faculty Publications

Since the 1960s, Asian Americans have been labeled by the dominant society as the “model minority.” This status is commonly juxtaposed against so-called “problem” minorities such as African Americans and Latinx Americans. In theory, the model minority narrative serves as living proof that racial barriers to social and economic development no longer exist in America. If Asians can succeed against all odds, the reasoning goes, so can everyone else. Further, if a member of a minority group fails, it is because of their own lack of diligence and ambition, and not some supposed systemic unfairness. However, the model minority narrative …

Reform Through Resignation: Why Chief Justice Roberts Should Resign (In 2023), Scott P. Bloomberg

Faculty Publications

Many proponents of reforming the Supreme Court have expressed support for adopting a system of eighteen-year staggered term limits. These proposals, however, are hobbled by constitutional constraints: Amending the Constitution to implement term limits is highly implausible and implementing term limits through statute is likely unconstitutional. This Essay offers an approach to implementing term limits that avoids these constitutional constraints. Just as President Washington was able to establish a de facto Presidential term limit by not seeking a third term in office, Chief Justice Roberts is uniquely positioned to establish a new norm of serving eighteen-year terms on the Court. …

Requiem For A Lightweight: How Ncaa Continues To Distort Antitrust Doctrine, Alan J. Meese

Faculty Publications

The Supreme Court speaks rarely about the meaning of the Sherman Act. When the Court does speak, its pronouncements have particular resonance and staying power among jurists, scholars, and enforcers. NCAA v. Board of Regents of the University of Oklahoma was such a case. There the Court assessed agreements reducing the output and increasing the prices of televised college football games. After announcing that restraints imposed by sports leagues are exempt from per se condemnation, the Court went on to invalidate the challenged agreements under the rule of reason because they produced significant economic harm without offsetting benefits. In so …

Eager To Follow: Methodological Precedent In Statutory Interpretation, Aaron-Andrew P. Bruhl

Faculty Publications

An important recent development in the field of statutory interpretation is the emergence of a movement calling for "methodological precedent"--a regime under which courts give precedential effect to interpretive methodology. In such a system, a case would establish not only what a particular statute means but could also establish binding rules of methodology--which tools are valid, in what order, and so on. The movement for methodological precedent has attracted sharp criticism on normative grounds. But both sides of the normative debate agree on the premise that the federal courts generally do not give precedential effect to interpretive methodology today.

This …

The Remand Power And The Supreme Court's Role, Aaron-Andrew P. Bruhl

Faculty Publications

"Reversed and remanded." Or "vacated and remanded." These familiar words, often found at the end of an appellate decision, emphasize that an appellate court's conclusion that the lower court erred generally does not end the litigation. The power to remand for further proceedings rather than wrap up a case is useful for appellate courts because they may lack the institutional competence to bring the case to a final resolution (as when new factual findings are necessary) or lack an interest in the fact-specific work of applying a newly announced legal standard to the particular circumstances at hand. The modern Supreme …

Conservative Minimalism And The Consumer Financial Protection Bureau, Jonathan H. Adler

Faculty Publications

While Chief Justice Roberts's votes do not hew closely to what either conservatives or progressives would have preferred, it is a mistake to assume the chief justice has been arbitrary or inconsistent. Rather, the October 2019 Term offered further confirmation that Chief Justice Roberts is a conservative minimalist. While his jurisprudential orientation remains quite conservative, he prefers narrow rulings over sweeping judgments. "If it's not necessary to decide more to dispose of a case, in my view it is necessary not to decide more," he explained in his confirmation hearings. At the same time, Chief Justice Roberts is reluctant to …

Supreme Court Journalism: From Law To Spectacle?, Barry Sullivan, Cristina Carmody Tilley

Faculty Publications

Few people outside certain specialized sectors of the press and the legal profession have any particular reason to read the increasingly voluminous opinions through which the Justices of the Supreme Court explain their interpretations of the Constitution and laws. Most of what the public knows about the Supreme Court necessarily comes from the press. That fact raises questions of considerable importance to the functioning of our constitutional democracy: How, for example, does the press describe the work of the Supreme Court? And has the way in which the press describes the work of the Court changed over the past several …

The Right Family, Noa Ben-Asher, Margot J. Pollans

Faculty Publications

The family plays a starring role in American law. Families, the law tells us, are special. They merit many state and federal benefits, including tax deductions, testimonial privileges, untaxed inheritance, and parental presumptions. Over the course of the twentieth century, the Supreme Court expanded individual rights stemming from familial relationships. In this Article, we argue that the concept of family in American law matters just as much when it is ignored as when it is featured. We contrast policies in which the family is the key unit of analysis with others in which it is not. Looking at four seemingly …

Backdoor Purposivism, Anita S. Krishnakumar

Faculty Publications

It has become standard among statutory interpretation commentators to declare that, “We are all textualists now.” The comment stems from the observation that in the modern, post-Scalia era, all of the Justices on the U.S. Supreme Court pay significant attention to statutory text when construing statutes and, relatedly, that legislative history use by the Court as a whole has declined since its heyday in the 1970s. The account of textualism’s triumph is so prevalent that some scholars have declared purposivism—or at least traditional purposivism—essentially defunct. Two prominent textualist scholars in particular have suggested that there is a “new purposivism” at …

The Traditions Of American Constitutional Law, Marc O. Degirolami

Faculty Publications

This Article identifies a new method of constitutional interpretation: the use of tradition as constitutive of constitutional meaning. It studies what the Supreme Court means by invoking tradition and whether what it means remains constant across the document and over time. Traditionalist interpretation is pervasive, consistent, and recurrent across the Court’s constitutional doctrine. So, too, are criticisms of traditionalist interpretation. There are also more immediate reasons to study the role of tradition in constitutional interpretation. The Court’s two newest members, Justices Neil Gorsuch and Brett Kavanaugh, have indicated that tradition informs their understanding of constitutional meaning. The study of traditionalist …

First Amendment Traditionalism, Marc O. Degirolami

Faculty Publications

Traditionalist constitutional interpretation takes political and cultural practices of long age and duration as constituting the presumptive meaning of the text. This Essay probes traditionalism's conceptual and normative foundations. It focuses on the Supreme Court's traditionalist interpretation of the First Amendment to understand the distinctive justifications for traditionalism and the relationship between traditionalism and originalism. The first part of the Essay identifies and describes traditionalism in some of the Court's Speech and Religion Clause jurisprudence, highlighting its salience in the Court's recent Establishment Clause doctrine.

Part II develops two justfications for traditionalism: "interpretive" and "democratic-populist." The interpretive justification is that …

First Amendment Lochnerism & The Origins Of The Incorporation Doctrine, James Y. Stern

Faculty Publications

The 20th century emergence of the incorporation doctrine is regarded as a critical development in constitutional law, but while issues related to the doctrine's justification have been studied and debated for more than fifty years, the causes and mechanics of its advent have received relatively little academic attention. This Essay, part of a symposium on Judge Jeffrey Sutton's recent book about state constitutional law, examines the doctrinal origins of incorporation, in an effort to help uncover why the incorporation doctrine emerged when it did and the way it did. It concludes that, for these purposes, incorporation is best understood as …

Virtual Briefing At The Supreme Court, Jeffrey L. Fisher, Allison Orr Larsen

Faculty Publications

The open secret of Supreme Court advocacy in a digital era is that there is a new way to argue to the Justices. Today's Supreme Court arguments are developed online: they are dissected and explored in blog posts, fleshed out in popular podcasts, and analyzed and re-analyzed by experts who do not represent the parties or have even filed a brief in the case at all. This "virtual briefing" (as we call it) is intended to influence the Justices and their law clerks but exists completely outside of traditional briefing rules. This article describes virtual briefing and makes a case …

Confining Cases To Their Facts, Daniel P. Rice, Jack Boeglin

Faculty Publications

Stare decisis is the mainstay of doctrinal stability. But through the little-known expedient of “confining a case to its facts,” courts can evade the pull of stare decisis by overruling everything a decision stands for except its precise result. This doctrinal workaround has enabled courts to sidestep the formal requirements that attend overruling and quietly undermine precedent without stirring public interest. But confining’s conveniences are offset by its considerable dangers: it cuts courts loose from the constraints of stare decisis; it requires judges to engage in unprincipled, fact-bound adjudication; it dilutes the integrity of the law by enshrining contradictory legal …

Equality Opportunity And The Schoolhouse Gate, Derek Black, Michelle Adams

Faculty Publications

Public schools have generated some of the most far-reaching cases to come before the Supreme Court. They have involved nearly every major civil right and liberty found in the Bill of Rights. The cases are often reflections of larger societal ills and anxieties, from segregation and immigration to religion and civil discourse over war. In that respect, they go to the core of the nation’s values. Yet constitutional law scholars have largely ignored education law as a distinct area of study and importance.

Justin Driver’s book cures that shortcoming, offering a three-dimensional view of how the Court’s education law jurisprudence …

Substance, Procedure, And The Rules Enabling Act, A. Benjamin Spencer

Faculty Publications

The Supreme Court promulgates rules of procedure (based on the proposals of subordinate rulemaking committees) pursuant to the Rules Enabling Act. This statute empowers the Court to prescribe "general rules of practice and procedure," with the caveat that "[s]uch rules shall not abridge, enlarge or modify any substantive right." The Act is supposed to stand as a real constraint on what rules or alterations thereof the subordinate rulemaking bodies will consider or propose, as well as on how the Court will choose to interpret any given codified Federal Rule. However, the Act has not-to date-been employed to invalidate a promulgated …

Pleading Conditions Of The Mind Under Rule 9(B): Repairing The Damage Wrought By Iqbal, A. Benjamin Spencer

Faculty Publications

In 2009, the Supreme Court decided Ashcroft v. Iqbal, in which it pronounced-among other things- that the second sentence of Rule 9(b) of the Federal Rules of Civil Procedure-which permits allegations of malice, intent, knowledge, and other conditions of the mind to be alleged "generally" -requires adherence to the plausibility pleading· standard it had devised for Rule 8(a)(2) in Bell Atlantic Corp. v. Twombly. That is, to plead such allegations sufficiently, one must offer sufficient facts to render the condition-of-the-mind allegation plausible. This rewriting of the standard imposed by Rule 9(b)'s second sentence-which came only veritable moments after the Court …

Essay: I Choose, You Decide: Structural Tools For Supreme Court Legitimation, Jeremy N. Sheff

Faculty Publications

Efforts to rein in partisanship (or the perception thereof) on the Supreme Court tend to focus on reforms to the selection, appointment, or tenure of Justices. I propose a different (and perhaps complementary) reform, which would not require constitutional amendment. I propose that the selection of a case for the Court’s discretionary appellate docket should be performed by a different group of judicial officers than those who hear and decide that case. The proposal leverages the insight of the “I Cut, You Choose” procedure for ensuring fair division—only here, it manifests as “I Choose, You Decide.” This proposal, rather than …

Justice Jackson In The Jehovah's Witnesses' Cases, John Q. Barrett

Faculty Publications

(Excerpt)

I will address Justice Jackson and Jehovah’s Witnesses in four parts. First, I will begin with Robert Jackson himself, introducing the man who became a Supreme Court Justice, and who came to author Barnette and at least one other very notable opinion in a Jehovah’s Witness case. Second, I will turn to the Barnette case in its Supreme Court legal context, which turns out to be two Court terms, 1941–42 and 1942–43, of many Jehovah’s Witnesses cases. These cases produced a run of Court decisions that are a framework surrounding Barnette, and thus understanding them is important to …

Passive Avoidance, Anita S. Krishnakumar

Faculty Publications

In its nascent years, the Roberts Court quickly developed a reputation—and drew sharp criticism—for using the canon of constitutional avoidance to rewrite statutes in controversial, high-profile cases. In recent years, however, the Court seems to have taken a new turn, quietly creating exceptions or reading in statutory conditions in order to evade potentially serious constitutional problems without expressly discussing the constitutional issue or invoking the avoidance canon. In fact, the avoidance canon seems largely, and conspicuously, missing from many cases decided during the Court’s most recent Terms, playing a significant role in justifying the Court’s construction in only one majority …

The Faith Of My Fathers, Robert H. Jackson, John Q. Barrett

Faculty Publications

(Excerpt)

In his final years, United States Supreme Court Justice Robert H. Jackson worked on a number of autobiographical writing projects. The previously unknown Jackson text that follows this Introduction is one such writing. Justice Jackson wrote this essay in longhand on thirteen yellow legal pad pages in the early 1950s. It is Jackson’s writing about religion in his life.

After Justice Jackson’s death in 1954, his secretary Elsie L. Douglas found the thirteen pages among his papers. She concluded that the pages were “undoubtedly prepared as part of his autobiography,” typed them up, and gave a file folder containing …

Mixed Signals: What Can We Expect From The Supreme Court In This Post-Ada Amendments Act Era?, Nicole Buonocore Porter

Faculty Publications

The Americans with Disabilities Act Amendments Act of 2008 (ADAAA) was intended to breathe new life into the ADA after the courts, especially the Supreme Court, drastically narrowed the ADA’s protected class. But since the ADA was amended in 2008, the Supreme Court has not decided any ADA cases. Thus, there are many ADA issues, especially in the employment context, that remain unresolved. This paper will attempt to determine whether we can expect a disability-friendly Supreme Court or whether the Court will once again narrowly construe individuals with disabilities’ rights under the ADA.

This abstract has been taken from the …

A Prudential Take On A Prudential Takings Doctrine, Katherine Mims Crocker

Faculty Publications

The Supreme Court is set to decide a case requesting reconsideration of a doctrine that has long bedeviled constitutional litigants and commentators. The case is Knick v. Township of Scott, and the doctrine is the "ripeness" rule from Williamson County Regional Planning Commission v. Hamilton Bank that plaint~ffs seeking to raise takings claims under the Fifth Amendment must pursue state-created remedies first- the so-called "compensation prong" (as distinguished from a separate "takings prong"). This Essay argues that to put the compensation prong in the best light possible, the Court should view the requirement as a "prudential" rule rather than (as …

Kennedy's Last Term: A Report On The 2017-2018 Supreme Court, Marc O. Degirolami, Kevin C. Walsh

Faculty Publications

(Excerpt)

Twenty-eighteen brought the end of Justice Anthony Kennedy’s tenure on the Supreme Court. We are now entering a period of uncertainty about American constitutional law. Will we remain on the trajectory of the last half-century? Or will the Court move in a different direction?

The character of the Supreme Court in closely divided cases is often a function of the median justice. The new median justice will be Chief Justice John Roberts if Kennedy’s replacement is a conservative likely to vote most often with Justices Clarence Thomas, Neil Gorsuch, and Samuel Alito. This will mark a new phase of …

Whether Or Not Special Expertise Is Needed: Anti-Intellectualism, The Supreme Court, And The Legitimacy Of Law, Sean Kammer

Faculty Publications

No abstract provided.

How Is Sex Harassment Discriminatory?, Noa Ben-Asher

Faculty Publications

(Excerpt)

What is sexual harassment, and what is its actual harm? Since the 1980s, these two questions have perplexed lawmakers, policymakers, feminists, and the public. Today, with the rise of #MeToo, and with increased national attention to Title IX claims regarding sexual violence on college campuses, these questions are once again in the spotlight. As some commentators have observed, in the last several years lawmakers and policymakers have been increasingly influenced by a feminist antisubordination approach to sexual harassment and assault. This growing influence is currently reflected in more strict standards of consent (“affirmative consent”) to sex, in higher procedural …

Faith-Based Emergency Powers, Noa Ben-Asher

Faculty Publications

This Article explores an expanding phenomenon that it calls Faith-Based Emergency Powers. In the twenty-first century, conservatives have come to rely heavily on Faith-Based Emergency Powers as a leading legal strategy in the Culture Wars. This strategy involves carving faith-based exceptions to rights of women and LGBT people. The concept of Faith-Based Emergency Powers is developed in this Article through an analogy to the “War on Terror.” In the War on Terror, conservatives typically have taken the position that judges, legislators, and the public must defer to the President and the executive branch in matters involving national security. This argument …