Supreme Court of the United States Commons^™

Originalism's General-Law Turn, Nina Varsava, Bill Watson

Northwestern University Law Review

Originalists are increasingly turning to a general-law theory of constitutional rights. Under this theory, constitutional enactment declared but did not create constitutional rights. The content of those rights was, and remains, a question of general law—a species of common law, regularly employed at the Founding, that transcends jurisdictional boundaries. This preoccupation with general law has precipitated a wave of scholarship developing general-law accounts of various constitutional rights. Yet the nature of general law itself remains poorly understood.

This Article offers a theory of general law. Using philosophical methods to reexamine early American cases and recent work in legal history, the …

Geduldig's Footnote: Five-Plus Decades Of State Courts Reckoning With Federal Pregnancy Discrimination Doctrine, Martha F. Davis

Northwestern University Law Review

In Geduldig v. Aiello (1974), the U.S. Supreme Court held that pregnancy discrimination does not constitute sex discrimination. The decision’s constitutional logic has recently been applied in Dobbs v. Jackson Women’s Health Organization and United States v. Skrmetti. Yet over five decades, state courts have overwhelmingly rejected Geduldig’s rationale—both in construing state employment discrimination statutes and in interpreting state constitutional equality provisions. Courts in at least sixteen states have rejected Geduldig’s rationale in construing state employment discrimination laws, while only four states have followed it. Of the ten states with Equal Rights Amendments that have addressed whether …

State Constitutionalism's Fragile Wall, Adam B. Sopko

Northwestern University Law Review

The adequate and independent state grounds (AISG) doctrine has long demarcated the perimeter of the U.S. Supreme Court’s authority to review state court decisions, limiting review to questions of federal law. AISG maintains the Court’s primacy over federal law and state courts’ supremacy over state law. A comprehensive review of all filings on the Court’s docket from state courts over the last twenty years reveals that recent applications of AISG consist of subtle but significant departures from existing norms that, together, suggest a reformulation of the Court’s power over state courts that threatens their sovereign law development role. This Essay …

State Constitutional Rights And Judicial Power, Zachary D. Clopton

Northwestern University Law Review

On the one hand, we are in a moment when interest in state courts and state constitutional law is growing. Especially, though not exclusively, among those who question the Supreme Court of the United States, there are increasing calls for state supreme courts to rely on state constitutions to expand rights. On the other hand, we are in a moment when interest in reducing the power of the courts is growing. Especially, though not exclusively, among those who question the Supreme Court of the United States, there are increasingly calls for reining in judicial power.

This Essay is not an …

State Greenhouse Gas Emissions Disclosure Laws And The Dormant Commerce Clause: Leveraging The State Interest In Protecting Residents From Deception To Pass The Pike Balancing Test, Matthew Macphail

Northwestern University Law Review

Misleading corporate claims about greenhouse gas emissions pose a high risk of consumer deception, as there is currently no uniform federal standard governing how companies must measure or disclose those emissions. Without a national regulatory scheme, firms can selectively report, use inconsistent methodologies, or market vague “carbon neutral” claims, making it difficult for consumers to assess accuracy or compare companies’ representations.

In 2023, California introduced legislation requiring companies doing business in the state to disclose their greenhouse gas emissions in an effort to bring transparency to this area. But such state-level mandates face a constitutional obstacle: the Dormant Commerce Clause, …

Should Judicial Opinions Be Read Like Statutes?, Margaret H. Lemos

Northwestern University Law Review

Should judicial opinions be interpreted with an eye to their purpose, context, or the intent of their authors, or should interpreters focus on the ordinary meaning of the text? Opinions present the same sorts of interpretive puzzles as other legal texts, and yet they have been omitted from the debates over interpretive methodology that dominate the fields of constitutional and statutory interpretation. The omission is no accident: the Supreme Court has stated repeatedly—and with increasing frequency in recent years—that judicial opinions are not to be read like statutes. Yet neither courts nor commentators have explained why the principles that ground …

The Ex Parte Young Cause Of Action: A Riddle, Wrapped In A Mystery, Inside An Enigma, Andrew S. Oldham, Adam I. Steene, John W. Tienken

Northwestern University Law Review

Ex parte Young ushered in a new era of the American judicial system. Most famously, the decision allowed plaintiffs, in certain circumstances, to sue state officials without having to worry about sovereign immunity. Young’s other holding, though perhaps lesser known, is no less important: individuals, the Supreme Court held, have an equitable cause of action to sue government officials for injunctive relief.

Even today, that second holding remains something of a riddle. Did this cause of action always exist in American law? Or was it an invention of the Young Court? And, at any rate, does the Ex parte …

A Tale Of Two Credits: The Post-Nestlé Alien Tort Statute And Carbon Credit Externalities, Stephanie Mao

Northwestern University Law Review

As companies increasingly embrace carbon-neutrality commitments, many rely on the voluntary carbon market to offset their emissions rather than reduce them directly. Regulatory and consumer scrutiny has focused on the widespread use of “phantom” carbon credits, i.e., credits that fail to produce meaningful climate benefits. But less attention has been paid to what this Note terms “colonial” carbon credits: those that may technically reduce emissions but do so at the expense of communities abroad. These projects may contribute to land dispossession, human rights abuses, and threats to public and environmental health. Yet, current regulatory and legal frameworks, with their focus …

Does Textualism Constrain Supreme Court Justices?, James J. Brudney, Lawrence Baum

Northwestern University Law Review

A principal justification for textualism is the constraint hypothesis. Conservative Justices and leading textualist scholars contend that—in stark contrast to reliance on legislative history—focus on the ordinary meaning of enacted text leaves little room for the Justices to be policy-oriented or ideological in their interpretations. This Article represents the first systematic study probing the validity of the constraint hypothesis, one that employs both quantitative and qualitative analysis.

The Article examines the Justices’ reliance on interpretive resources in over 660 statutory decisions in the field of labor and employment, decided by the Burger Court, the Rehnquist Court, and the Roberts Court—during …

The Vanishing Enforcer: Consumer Protection In An Era Of Dual Retrenchment, Alisher Juzgenbayev

Northwestern University Law Review

Recent developments, including reductions in the federal workforce, effective suspension of certain enforcement activities, and attempted centralization of independent agency rulemaking in the White House, have significantly weakened administrative agencies. This administrative retrenchment is concerning as private enforcement of a number of consumer protection statutes has been simultaneously curtailed through the Supreme Court’s decisions in Spokeo, Inc. v. Robins and TransUnion LLC v. Ramirez, which dramatically narrowed plaintiffs’ standing. These decisions rely in part on a vision of strong executive authority, positing that broad private standing conflicts with an Article II framework where a politically accountable President faithfully implements laws …

Applying The Indian Commerce Clause To Indian Commerce, Adam Crepelle

Northwestern University Law Review

Indian country commerce generates tens of billions of dollars annually and is a constant source of litigation. These disputes typically revolve around jurisdictional conflicts: whether states, tribes, or both possess regulatory authority over the business operating in Indian country, particularly those involving non-Indians. Despite numerous court cases, no clear legal framework has emerged, creating pervasive uncertainty regarding fundamental issues, such as state taxation of tribal transactions and the proper forum for resolving Indian country contract disputes. Interestingly, these commercial cases overlook the Indian Commerce Clause—the constitutional provision designed to address such matters.

This Article argues the Indian Commerce Clause prohibits …

Electoral Due Process, Michael S. Kang

Northwestern University Law Review

Hyperpartisanship has hit century-long highs in American politics and is emboldening state government attempts to undermine election outcomes by using control over state lawmaking structure to strip away authority, and sometimes outright unseat, partisan opponents after they win elected office. Even as traditional norms against such moves have eroded, the Supreme Court has taken a pro-partisanship turn in removing judicial checks against such moves under equal protection and constitutional structure. This Article proposes shifting from challenges under those doctrines to a new approach under electoral due process for confronting this new generation of antidemocracy. Federal due process law restricts the …

The Federalism Canons As Ordinary Interpretation, Anthony J. Bellia Jr., Bradford R. Clark

Northwestern University Law Review

Scholars remain generally skeptical of substantive canons of statutory interpretation even as courts continue to employ such canons in important cases. Unlike semantic canons, which help judges discern the best meaning of statutory text in context, substantive canons provide tiebreakers when the text is unclear or require special clarity in order for the text to perform certain functions. Among the substantive canons, the so-called “federalism canons” have been singled out for special scrutiny. The federalism canons are a family of canons that require courts to avoid interpreting an act of Congress to divest states of certain sovereign rights or powers—including …

The Establishment That Time Forgot: The Historical Understanding Of Religious Offenses And Their Unconstitutionality In Modern Law, Benjamin J. Citow

Northwestern University Law Review

This Note argues that religious offenses, meaning laws which penalize conduct for religious purposes, should be barred by the Establishment Clause of the Constitution, as the Clause was interpreted in Kennedy v. Bremerton School District. This is because Kennedy interpreted the Establishment Clause to prohibit each of the several types of laws which early Americans associated with religious establishment—the historical practice wherein early states would adopt a religion as the state religion and pass various types of laws for its support. And religious offenses, this Note argues, were amongst the types of laws which early Americans so associated with …

First Amendment Exceptions To Otherwise Valid Laws: A Doctrinal And Meta-Doctrinal Perspective, Richard H. Fallon Jr.

Northwestern University Law Review

When do the First Amendment’s Free Speech and Free Exercise Clauses require exceptions to generally valid laws? Recently, the Supreme Court has upheld a number of such exceptions, which excuse some speakers and religiously motivated actors from legal duties that apply to others, including in prominent cases under antidiscrimination statutes and emergency pandemic regulations. By contrast, other landmark cases––such as United States v. O’Brien and Employment Division v. Smith—insist that First Amendment exceptions should be rare.

In analyzing the fraught and confusing issues that surround First Amendment exceptions, this Article makes four main contributions. First, it conceptualizes claims to …

Malapportionment: A Murder Mystery, Daniel Wodak

Northwestern University Law Review

Malapportionment—electoral districts with divergent ratios of people to representation—was ruled to be unconstitutional in a widely venerated series of cases before the Warren Court. Those cases held that a principle of political equality, one person, one vote, is required by the Constitution. But what is the content of that principle? Many Justices and commentators declare that it is vague, empty, circular, or meaningless. This creates a murder mystery. Malapportionment was killed, but by what exactly? This Article seeks an answer by focusing on the Supreme Court’s commitments about the scope and strictness of one person, one vote: it …

Nonparty Protective Relief In The Early Republic: Judicial Power To Annul Letters Patent, James E. Pfander, Mary E. Zakowski

Northwestern University Law Review

Much of the debate over the constitutionality of universal or nonparty protective relief in the federal court system has focused on lessons drawn from historical practice. But with its emphasis on injunctive relief, the literature has largely ignored forms of adjudication that arose outside the courts of equity and led to judgments and decrees affecting the rights of nonparties. As a result, the story of nonparty protective relief has not yet been fully told.

This Article offers a more complete story, highlighting proceedings in which federal courts issued judgments that settled a matter once and for all. Some familiar examples …

Control As A Constitutional Threshold: Moody V. Netchoice And The Case For Human Authorship, Giselle Goad

Northwestern University Law Review

The Supreme Court’s 2024 decision in Moody v. NetChoice, LLC left a critical question unanswered: when do algorithmic outputs on social media platforms, such as recommended posts and videos, constitute the platform’s protected speech under the First Amendment? This Note contends that courts and litigants should borrow from the First Amendment’s speech-promoting partner, copyright law, and its authorship framework when answering that question. Copyright doctrine has already begun to grapple with how much human control is required over expressive outputs generated with the aid of technology, including AI, in order for an author to receive copyright protection over those outputs. …

Take In Case Of Emergency: Reconciling Necessity Takings With The Original Meaning Of The Takings Clause, Tony Smith

Northwestern University Law Review

Does the Fifth Amendment’s Takings Clause permit the state to destroy property without compensation whenever it declares an emergency? The long-standing doctrine of necessity empowers the state to do exactly that.

Courts dating back to common law England have permitted governments to claim a privilege of necessity to avoid paying for private property they destroy in times of crisis. The privilege rests on the principle that the public good sometimes outweighs the harm the individual suffers. Today’s courts and academics stretch this principle to its limits, arguing necessity should be used as a vehicle for combating all manner of social …

What On Earth Is A Burden On Interstate Commerce?, Andrew Jordan

Northwestern University Law Review

What is a burden on interstate commerce? That’s an important question under the Dormant Commerce Clause’s Pike balancing test. But it’s a question whose answer has proven elusive. This shouldn’t be a surprise. After all, states disagree about what counts as a burden or a benefit, and how much weight each has. And there aren’t any obvious constitutional principles we can point to for resolving those disagreements. Recently, some scholars have tried to ground dormant commerce doctrine in economic cost–benefit analysis. The supposed virtue of that approach is that it is neutral as to competing preferences. Thus, for the Court …

Existing Together From The Beginning: Freedom To Contract And Black Mutual Aid, Cara Mcclellan

Northwestern University Law Review

In a new wave of litigation, conservative legal organizations are attempting to rely on Reconstruction-era civil rights legislation to prevent nonprofits, charities, foundations, and other privately organized groups from engaging in race-conscious work. Unlike the Supreme Court’s recent rollback of affirmative action, which dealt with universities’ ability to consider race in admissions as state actors and as recipients of federal funding, a series of lawsuits now challenge the ability of private organizations to consider race in how they invest money and resources to create social impact. Adding fuel to the fire, on January 21, 2025, President Trump issued an Executive …

Not Colorblind, Kimberly West-Faulcon

Northwestern University Law Review

This Essay criticizes the use of the term “colorblind” in reference to attacks on racial diversity, equity, and inclusion (DEI) policies. It argues it is inapt and unconscionably obtuse to use colorblindness terminology to selectively target inclusion-motivated race consciousness for automatic illegality. The Essay’s central project is to examine claims underlying attacks on racial inclusion policies such as the Students for Fair Admissions, Inc. v. President and Fellows of Harvard College lawsuit to expose the legal endgame that anti-DEI forces seek to make a centerpiece of America’s future. In so doing, it surfaces the differential scrutiny of race consciousness …

Standing On Stare Decisis After Students For Fair Admissions, Areeb Asif, Lindsey Roloff

Northwestern University Law Review

The Supreme Court recognized nearly half a century ago in Regents of the University of California v. Bakke that “the ‘nation’s future depends upon leaders trained through wide exposure’ to the ideas and mores of students as diverse as this Nation of many peoples.” Nevertheless, the Court seriously undercut efforts to bring such a future to life by striking down race-conscious admissions programs in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina (collectively SFFA). Though SFFA’s binding effect is limited to educational institutions, …

Crisis Convergence, Sarah Medina Camiscoli

Northwestern University Law Review

Progressive jurists and legal scholars have called the Supreme Court’s doctrine of colorblind constitutionalism that dismantled affirmative action in Students for Fair Admissions, Inc. v. President and Fellows of Harvard (SFFA) a crisis for constitutional democracy. However, scholars have not yet tended to students, particularly students mobilized for racial justice, to understand their interpretation of this race-evasive ideology and what insights those mobilized students might offer in this pivotal moment. Given the fact that a small coalition of dissenting conservative jurists, scholars, and mobilized students—the Federalist Society—spent decades crafting the doctrine, scholarship, and resources that drive colorblind constitutionalism …

Constitutional Futurisms, Jeremiah Chin

Northwestern University Law Review

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 …

Toward A Perpetual Practice Of Affirmative Action, Sheldon Bernard Lyke

Northwestern University Law Review

Despite perceptions that affirmative action is “dead” following the Supreme Court ruling in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College (SFFA), this Essay argues that affirmative action remains crucial for addressing racial bias in admissions processes. This Essay examines the strict scrutiny standard, which requires that any use of race must serve a compelling government interest and be narrowly tailored to achieve that interest. Courts have interpreted the narrowly tailored prong of this standard to include a logical end point requirement, which mandates that race-conscious measures must have a clear and limited …

Infrastructure Equality, Deborah N. Archer, Yuvraj Joshi

Northwestern University Law Review

The United States’ racialized geographies have left communities of color with systematically inferior essential infrastructure that perpetuates their social and economic exclusion. From roads, public transportation, and sewage systems, to banks, high-speed internet, and high-quality public schools, people and communities of color have limited access to the fundamental infrastructure necessary to lead socially and economically vibrant lives. This Essay introduces “infrastructure equality” as a unifying framework to address the critical intersection of physical, social, and legal infrastructures that feed racial inequality. Drawing on multidisciplinary research, it argues that infrastructure—the interconnected and vital system of physical structures, networks, and social institutions—should …

Climate Exceptionalism In Court, Zachary D. Clopton, David A. Dana

Northwestern University Law Review

Across a range of cases, fossil fuel companies, government actors, and some judges have conceded that climate change is an exceptional phenomenon, only to argue that its exceptional nature is a reason to keep climate change out of court. These parties and judges thus seek to avoid the adjudication of climate cases on the merits, even when the neutral application of existing law would provide for jurisdiction in these cases. We term this phenomenon “climate jurisdiction exceptionalism.”

This Article provides a comprehensive account of climate jurisdiction exceptionalism, focusing on two main threads: Article III standing and state court jurisdiction. First, …

Let's Get Personal: Due Process And Personal Jurisdiction As A New Path Forward For Extraterritoriality, Samy Abdelsalam

Northwestern University Law Review

The Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization has put fundamental principles of federalism and state sovereignty under attack. Legislation and lawsuits in states nationwide aim to limit the rights of American citizens to travel freely between states in search of medical care. Further, these measures have extraterritorial reach, legally entangling the rights of private citizens in other states who provide medical care even while fully within their own state borders. Scholars have analyzed this development through various doctrinal lenses, including the Dormant Commerce Clause. But these frameworks fail to adequately protect those who are unfortunate enough …

Constraining The Executive Branch: Delegation, Agency Independence, And Congressional Design Of Judicial Review, Jennifer L. Selin, Pamela J. Clouser Mccann

Northwestern University Law Review

While scholarship examining the relationship between Congress, federal agencies, and the judiciary reveals variation in the statutory details that affects administrative and judicial decision-making, few studies explore the extent to which congressional delegation decisions balance both the substantive and procedural independence of agencies against the possibility of the federal judiciary’s review of administrative action.

This Article enhances scholarly understanding of delegation by providing a qualitative, theoretical, and empirical account of the circumstances under which Congress manipulates federal agency exposure to the federal judiciary. Ironically, combined with statutory provisions dictating agency independence, increasing an agency’s exposure to unelected federal judges can …