Supreme Court of the United States Commons^™

Popular Constitutionalism In A Populist Age, Thomas G. Donnelly

Law Faculty Publications

Popular constitutionalism burst onto the scene as a challenge to the constitutional authority of the Supreme Court. Decades later, popular constitutionalists remain susceptible to one of the earliest (and most potent) critiques of their project—the charge that they have done far too little to explain how their theory might work in practice. With the rise of modern populism, it’s also fair to ask whether popular constitutionalism is an approach that’s capable of meeting the challenges of the current constitutional moment. In this Article, I offer a new vision for popular constitutionalism—one that shows how the theory might work in practice, …

Qualified Immunity & Subjective Knowledge, John F. Preis

Law Faculty Publications

There is something weird going on within the doctrine of qualified immunity. The Supreme Court and lower courts routinely claim that officers who “knowingly violate the law” are not entitled to qualified immunity, but then—in almost the same breath—assert that an officer’s knowledge of the law is irrelevant to the qualified immunity analysis. What is even more strange is that these two opposing views can apparently be traced to the foundational case in the field: Harlow v. Fitzgerald.

This Article explores and proposes a resolution to this apparent contradiction. Beginning with Harlow itself, the Article explores the case using the …

Office Intent And Excessive Force, John F. Preis

Law Faculty Publications

In the mayhem that often accompanies a police officer’s use of force, all manner of mistakes and miscalculations can occur. Suspects are accidentally shot, innocent bystanders are bitten by police dogs, and hostages are killed instead of their kidnappers. To what degree may persons harmed by police mistakes obtain relief through excessive force claims?

At present, the answer to this question is surprisingly uncertain. It is clear that an excessive force claim requires that an officer intend to seize the suspect, but it is far less clear whether the officer must also intend the nature and extent of force used …

Minimal Justiciability, Riley T. Keenan

Law Faculty Publications

Federal courts adjudicate only justiciable disputes. But justiciable as to whom? The Supreme Court has hinted at an answer, holding that at least one plaintiff must show standing for each remedy sought in a federal case. But it has never explained this “one-plaintiff rule,” and recently some scholars have criticized it, arguing that Article III instead requires each plaintiff to show standing in every federal case.

This Article offers the missing explanation. Justiciability limits judicial power, it contends, and judicial relief is the constitutionally relevant expression of that power. Thus, Article III requires only one plaintiff with standing and a …

Popular Originalism, Thomas G. Donnelly

Law Faculty Publications

Scholars are obsessed with the Roberts Court’s recent turn to history and tradition. But another source of authority has also emerged as an important feature of the Roberts Court’s approach to constitutional cases. In previous work, I have referred to this source of authority as popular meaning. While original meaning identifies the best reading of the Constitution’s text at the time of its ratification, popular meaning draws on sources of authority outside the courts to capture the constitutional views of the American people today. In this Article, I demonstrate how interpreters might draw on the Constitution’s popular meaning to help …

The Beleaguered Sovereign: Judicial Restraints On Public Enforcement, Luke P. Norris, Helen Hershkoff

Law Faculty Publications

Looking back at the federal courts over the last generation, commentators will likely focus on their role in undermining the functioning of the regulatory state. Well-acknowledged in this story are Supreme Court decisions that have constrained administrative agencies under the newly minted “major questions” doctrine, as well as the Court’s blockbuster decision overruling the longstanding Chevron doctrine. The Court also has made it increasingly difficult for individuals—often workers and consumers, people of color, women, and those who live from paycheck to paycheck—to seek federal judicial redress for regulatory violations as private enforcers. And the Court has questioned whether certain private …

A Crust Of Bread: Religious Resistance And The Fourteenth Amendment, Kurt T. Lash, Stephanie Hall Barclay

Law Faculty Publications

In Employment Division v. Smith, the U.S. Supreme Court denied heightened constitutional protection to religiously motivated exercise burdened by neutral and generally applicable laws. The history presented in this Article suggests that the Smith approach conflicts with the original understanding of the Fourteenth Amendment. Out of the crucible of religious abolitionist resistance to the Fugitive Slave Act emerged a substantive theory of constitutional religious freedom: American citizens should have the right to obey the Biblical command to care for the needy and provide the hungry a "crust of bread," even if doing so was contrary to neutral and generally …

The Persistent Treatise, Dana Neacsu, Paul Douglas Callister

Law Faculty Publications

The legal treatise remains a pillar of the American legal system and the rule of law, despite claims it might be dying and variations in quantitative citations to treatises over time. Indeed, several treatises evidence increased citation in U.S. Supreme Court opinions during the last several decades. Surprisingly, the U.S. Supreme Court, including the Robert’s Court in Dobbs v. Jackson Women’s Health Organization, increasingly sees fit to rely on proto-treatises, such as Bracton, Coke, and Blackstone. This article provides empirical data and qualitative analysis to support this claim, highlighting the sometimes declining but nevertheless significant presence of treatises in …

The Roberts Court Revolution, Institutional Legitimacy, And The Promise (And Peril) Of Constitutional Statesmanship, Thomas G. Donnelly

Law Faculty Publications

Our nation is in the middle of a constitutional revolution. While many periods of constitutional transformation have arisen out of large-scale political realignments, the Roberts Court Revolution is a product of our nation’s long (and unusual) political interregnum. Even as neither political party has managed to secure enough support to reconstruct our nation’s politics, the Roberts Court—with its young and ambitious conservative majority—has already moved quickly to reconsider key pillars of the existing constitutional regime. This represents a challenging moment for the Roberts Court and its institutional legitimacy. To counteract this danger, the Justices might return to an old idea—one …

Popular Constitutionalism Inside The Courts: The Search For Popular Meaning, Thomas G. Donnelly

Law Faculty Publications

While commentators celebrate (or lament) the rise of originalism on the Roberts Court, another theory may prove as important to the future of constitutional law: popular constitutionalism. In a range of recent cases, Justices from across the ideological spectrum have proven themselves open to using sources of popular authority to address important constitutional issues. This is especially true of the two Justices at the Roberts Court’s ideological center: John Roberts and Brett Kavanaugh. Even so, the question remains how best to make popular constitutionalism work inside the courts. This question has vexed popular constitutionalists since the theory’s inception. In my …

Judges And The Regulatory State: Trends Of Resistance And Restraint, Luke Norris

Law Faculty Publications

The last great confrontation between courts and the regulatory state occurred at the turn of the previous century. As courts in the first decades of the twentieth century resisted regulatory laws designed to protect workers and curb market excesses, they sustained broad legal and public critique, including claims that they were guardians of corporate power and monied and propertied interests. The showdown, as is familiar fare, was seemingly resolved in the New Deal, with the Supreme Court and judiciary largely accepting the constitutionality of federal and state regulatory laws. The compromise that emerged, dubbed the “New Deal settlement,” ostensibly called …

Rooted: Metaphors And Judicial Philosophy In Artis V. District Of Columbia, Richard L. Heppner Jr.

Law Faculty Publications

This article examines how the metaphors in judicial opinions reveal judicial theories of lawmaking and judicial philosophies, through a close reading of Justice Ginsburg’s majority opinion and Justice Gorsuch’s dissenting opinion in the Artis v. District of Columbia, 138 S. Ct. 594 (2018).

Artis was about what the phrase “shall be tolled” means in the federal supplemental jurisdiction statute, 28 U.S.C. §1367. Does a state-law claim’s statute of limitations pause or continue to run while the claim is in federal court? In holding that Congress used “stop the clock” tolling, an “off-the-shelf” legal device that pauses statute of limitations, …

The State Citizenship Clause, Kurt T. Lash

Law Faculty Publications

The first sentence of the Fourteenth Amendment declares: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, is a citizen of the United States and of the state wherein they reside.” This opening sentence contains not one, but two citizenship clauses. The first defines national citizenship. The second defines state citizenship. Although significant historical scholarship exists regarding the other provisions in Section One of the Fourteenth Amendment, the State Citizenship Clause has been unstudied, unapplied and, quite often, unrecognized.

Functional Federal Equity, Riley T. Keenan

Law Faculty Publications

Throughout history, English and American courts have adapted traditional equitable doctrines and remedies to new social, economic, and technological circumstances. This traditional approach to equity traces to England’s High Court of Chancery in the seventeenth century, and federal courts in the United States have applied it since the founding, fashioning new forms of equitable relief to break labor strikes, desegregate schools, redraw electoral maps, and prevent the enforcement of unconstitutional laws.

Yet despite its pedigree, the Supreme Court has abandoned this traditional approach to equity over the past two decades. Today, the Court limits federal courts to the doctrines and …

Roe And The Original Meaning Of The Thirteenth Amendment, Kurt T. Lash

Law Faculty Publications

The current debate over Roe v. Wade as a substantive due process right has prompted scholars to investigate alternative sources for a constitutional right to abortion. One approach argues that the Thirteenth Amendment’s prohibition on “slavery” and “involuntary servitude” prohibits the government from denying women the right to terminate a pregnancy. Scholars making this argument con-cede that the right to abortion was not the expected application of the Thirteenth Amendment but insist that a forced continued pregnancy falls within the original meaning of the Amendment’s terms.

Supreme Court Legitimacy: A Turn To Constitutional Practice, Thomas G. Donnelly

Law Faculty Publications

Commentators offer the Justices consistent—if unsolicited—advice: tend to the Supreme Court’s institutional legitimacy. However, to say this—without saying more—is to say very little. Of course, constitutional theorists already wrestle with the meaning of legitimacy—its contours, its complexity, and its influence on the Justices. Political scientists debate the relationship between institutional concerns and judicial behavior. At the same time, previous scholars largely ignore issues of constitutional practice. This is a mistake. In this Article, I take up this neglected topic. To that end, I detail how the individual Justice might work to bolster the Court’s legitimacy in concrete cases. Part of …

Mcculloch V. Madison: John Marshall's Effort To Bury Madisonian Federalism, Kurt T. Lash

Law Faculty Publications

"In his engaging and provocative new book, The Spirit of the Constitution: John Marshall and the 200-Year Odyssey of McCulloch v. Maryland, David S. Schwartz challenges McCulloch’s canonical status as a foundation stone in the building of American constitutional law. According to Schwartz, the fortunes of McCulloch ebbed and flowed depending on the politics of the day and the ideological commitments of Supreme Court justices. Judicial reliance on the case might disappear for a generation only to suddenly reappear in the next. If McCulloch v. Maryland enjoys pride of place in contemporary courses on constitutional law, Schwartz argues, then this …

Popular Constitutional Argument, Thomas G. Donnelly

Law Faculty Publications

Critics have long attacked popular constitutionalists for offering few clues about how their theory might work in practice—especially inside the courts. These critics are right. Popular constitutionalism—as a matter of both theory and practice—remains a work in progress. In this Article, I take up the challenge of developing an account of (what I call) popular constitutional argument. Briefly stated, popular constitutional argument is a form of argument that draws on the American people’s considered judgments as a source of constitutional authority—akin to traditional sources like text, history, structure, and doctrine. Turning to constitutional theory, I situate popular constitutional argument within …

The Popular Constitutional Canon, Thomas G. Donnelly

Law Faculty Publications

Popular constitutionalism scholarship has often left out the American people. Sure, ordinary citizens make cameo appearances—often through the actions of elected officials and elite movement leaders. However, focusing on high politics among elite actors—even if those actors are not judges—simply is not enough. If popular constitutional views do, indeed, matter, then we can expect constitutional partisans to try to manipulate the processes through which these views emerge. Some constitutional scholars have made a start, reflecting on the importance of the constitutional canon. However, these scholars focus mostly on the legal canon and often ignore its popular analog. At the same …

Supreme Court Review (1960-2009): A Bibliometrical Study, Joel Fishman

Law Faculty Publications

Supreme Court Review is a faculty-edited legal periodical published by the University of Chicago Law School. This periodical is a highly read and cited law review in law, history and political science. This article applies bibliometrics to a study of the 438 articles that are published in the periodical over a 50-year period. It is analysis of the number of articles by volume, pages, footnotes, authorship by sex, by individual, by institution, and most-cited articles.

Marriage Equality Comes To The Fourth Circuit, Carl Tobias

Law Faculty Publications

Marriage equality has come to America. Throughout 2014, several federal appellate courts and numerous district court judges across the United States invalidated state constitutional or statutory proscriptions on same-sex marriage. Therefore, it was not surprising that Eastern District of Virginia Judge Arenda Wright Allen held that Virginia’s bans were unconstitutional in February. The United States Court of Appeals for the Fourth Circuit affirmed her opinion that July. North Carolina, South Carolina, and West Virginia District Judges rejected these jurisdictions’ prohibitions during autumn, and the Supreme Court approved marriage equality the next year. Because marriage equality in the Fourth Circuit presents …

Soft Supremacy, Corinna Barrett Lain

Law Faculty Publications

The debate over judicial supremacy has raged for more than a decade now, yet the conception of what it is we are arguing about remains grossly oversimplified and formalistic. My aim in this symposium contribution is to push the conversation in a more realistic direction; I want those who claim that judicial supremacy is antidemocratic to take on the concept as it actually exists. The stark truth is that judicial supremacy has remarkably little of the strength and hard edges that dominate the discourse in judicial supremacy debates. It is porous, contingent- soft. And the upshot of soft supremacy is …

Judicial Departmentalism: An Introduction, Kevin C. Walsh

Law Faculty Publications

This Article introduces the idea of judicial departmentalism and argues for its superiority to judicial supremacy. Judicial supremacy is the idea that the Constitution means for everybody what the Supreme Court says it means in deciding a case. Judicial departmentalism, by contrast, is the idea that the Constitution means in the judicial department what the Supreme Court says it means in deciding a case. Within the judicial department, the law of judgments, the law of remedies, and the law of precedent combine to enable resolutions by the judicial department to achieve certain kinds of settlements. Judicial departmentalism holds that these …

The Limits Of Reading Law In The Affordable Care Act Cases, Kevin C. Walsh

Law Faculty Publications

One of the most highly lauded legacies of Justice Scalia's decades-long tenure on the Supreme Court was his leadership of a movement to tether statutory interpretation more closely to statutory text. His dissents in the Affordable Care Act cases- National Federation of Independent Business v. Sebelius and King v. Burwell- demonstrate both the nature and the limits of his success in that effort.

These were two legal challenges, one constitutional and the other statutory, that threatened to bring down President Obama's signature legislative achievement, the Patient Protection and Affordable Care Act. Both times the Court swerved away from a direct …

Confirming Supreme Court Justices In A Presidential Election Year, Carl W. Tobias

Law Faculty Publications

Justice Antonin Scalia’s death prompted United States Senate Majority Leader Mitch McConnell (R-Ky.) and Judiciary Committee Chair Chuck Grassley (R-Iowa) to argue that the President to be inaugurated on January 20, 2017—not Barack Obama—must fill the empty Scalia post. Obama in turn expressed sympathy for the Justice’s family and friends, lauded his consummate public service, and pledged to nominate a replacement “in due time,” contending that eleven months remained in his administration for confirming a worthy successor. Obama admonished that the President had a constitutional duty to nominate a superlative aspirant to the vacancy, which must not have persisted for …

Identity Criris: Claim Prevlusion In Constitutional Challenges To Statutes, Riley T. Keenan

Law Faculty Publications

Claim preclusion bars parties from relitigating in a later action claims that were or should have been litigated in a prior action. How does this doctrine apply in constitutional challenges to state and federal statutes? When a plaintiff challenges one provision of a statute in one action, can she challenge a different provision of the same statute in a later action? And when, if ever, can she bring two successive challenges to the same provision?

Though the Supreme Court addressed these questions two terms ago in Whole Women’s Health v. Hellerstedt, its answers were incomplete. This Article searches for …

Filling Federal Court Vacancies In A Presidential Election Year, Carl W. Tobias

Law Faculty Publications

Scholars and politicians who closely track the federal judicial selection process appreciate that confirmations slow and ultimately halt over presidential election years, a phenomenon which has greater salience in a chief executive's last administration. The first section of this article canvasses selection in Barack Obama's tenure, ascertaining that Republicans cooperated little and contravened numerous traditions, especially after the party captured a majority. Thus, section two analyzes why the GOP did not collaborate and the consequences. Because that obstruction-which undercuts justice and regard for the coequal branches of government- will actually continue across 2016, the piece surveys devices, which could rectify …

Feminist Justice: Review Of Sisters In Law: How Sandra Day O'Connor And Ruth Bader Ginsburg Went To The Supreme Court And Changed The World, By Linda Hirshman, Corinna Barrett Lain

Law Faculty Publications

Like most good books, Sisters in Law has a number of strengths and also a few weaknesses. In this review, I briefly reflect on both, then turn to what struck me most about the book, the thing I’m still thinking about and struggling with: what it means to be an elite. The good, the bad, and the ugly (truth)—here is my reaction to Sisters in Law.

Death Row, Calls For Indifference, And Redemption Of The Soul, Corinna Barrett Lain

Law Faculty Publications

In this Response, I first engage with McLeod’s article, summarizing its key claims and endorsing its call for legislative action, while disagreeing at times with the analytical moves it makes along the way. I then turn to two questions that the article inspired. One stems from comments in the constitutional, academic, and public discourse calling for indifference to the way we treat the condemned in light of the way they treated their victims. Given the depravity of the crimes the condemned have committed, why should we care about the conditions under which they are housed on death row? The other …

Justice Thomas's Kelo Dissent: The Perilous And Political Nature Of Public Purpose, Carol N. Brown

Law Faculty Publications

This Essay submits that the arguments that Justice Thomas constructed in his dissent were appropriately focused on the inherently political nature of the Fifth Amendment's Public Use Clause. Unlike the majority, Justice Thomas recognized that when the Supreme Court broadly interprets the public use restriction of the Fifth Amendment's Takings Clause, and at the same time defers to political actors in this arena, it fundamentally abdicates its constitutional responsibility. By deferring to political actors in this area, the Court in Kelo fundamentally abdicated its responsibility and also adopted a majoritarian doctrinal approach. Further, the Court conflated political ends with constitutional …