Supreme Court of the United States Commons^™

The Article Iii "Party" And The Originalist Case Against Corporate Diversity Jurisdiction, Mark Moller, Lawrence B. Solum

Faculty Scholarship

Federal courts control an outsize share of big-ticket corporate litigation. And that control rests, to a significant degree, on the Supreme Court’s extension of Article III’s Diversity of Citizenship Clause to corporations. Yet, critics have questioned the constitutionality of corporate diversity jurisdiction from the beginning.

In this Article and a previous one, we develop the first sustained critique of corporate diversity jurisdiction.

Our previous article demonstrated that corporations are not “citizens” given the original meaning of that word. But we noted this finding alone doesn’t sink general corporate diversity jurisdiction. The ranks of corporate shareholders include many undoubted “citizens.” And …

No Sense Of Decency, Kathryn E. Miller

Washington Law Review

For nearly seventy years, the Court has assessed Eighth Amendment claims by evaluating “the evolving standards of decency that mark the progress of a maturing society.” In this Article, I examine the evolving standards of decency test, which has long been a punching bag for critics on both the right and the left. Criticism of the doctrine has been fierce but largely academic until recent years. Some fault the test for being too majoritarian, while others argue that it provides few constraints on the Justices’ discretion, permitting their personal predilections to rule the day. For many, the test is seen …

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

Articles

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 …

Living Traditionalism, Sherif Girgis

Journal Articles

From the Article

This Article offers the first comprehensive analysis of the Court’s living traditionalism, which turns out to include scores of cases spanning every subject and Justices of every stripe. Next, the Article identifies a fundamental but previously unrecognized tension in the method itself: If the Court gives living-traditionalist cases full weight as precedent, it defeats the reasons for using the method at all. Put another way, it is incoherent to treat political practices as a ratchet: capable of moving law in one direction (e.g., against a right in 2022) but not the other (in favor of the right …

Holmes V. Walton And Its Enduring Lessons For Originalism, Justin W. Aimonetti

Marquette Law Review

Originalism is nothing new. And the New Jersey Supreme Court’s 1780 decision in Holmes v. Walton shows it. In that case, the New Jersey Supreme Court disallowed a state law as repugnant to the state constitution because the law permitted a jury of only six to render a judgment. To reach that result, the court looked to the fixed, original meaning of the jury trial guarantee embedded in the state constitution, and it then constrained its interpretive latitude in conformity with that fixed meaning. Holmes thus cuts against the common misconception that originalism as an interpretive methodology is a modern …

Original(Ism) Sin, G. Alex Sinha

St. John's Law Review

(Excerpt)

During President Trump’s term in office, the Senate confirmed nearly 250 of his federal judicial nominees, including 3 to the Supreme Court of the United States. That number amounts to nearly a third of the federal judiciary’s roughly 800 active members. By and large, the judges nominated by President Trump purport to apply some form of originalist constitutional interpretation or construction, though the subject of originalism featured perhaps most prominently at the confirmation hearings for Amy Coney Barrett, whom President Trump nominated in October of 2020 to replace Justice Ruth Bader Ginsburg. Whatever one thinks of the vast literature …

Deep-State Constitutionalism, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

In this review, I explain how "Common Good Constitutionalism" taps into a deficiency of the conservative legal movement: namely, its exclusive focus on the law "as it is" at the expense of the underlying abstract normative principles that justify the positive law of our written Constitution. Due to this deficiency, the conservative legal movement gives short shrift to the Declaration of Independence and the Ninth Amendment and the natural rights to which both refer. This deficiency is in need of correction. But any such correction does not justify the jettisoning of originalism as Vermeule proposes. Nor does Vermeule defend his …

The Lost History Of Delegation At The Founding, Christine Chabot

Georgia Law Review

The new Supreme Court is poised to bring the administrative state to a grinding halt. Five Justices have endorsed Justice Gorsuch’s dissent in Gundy v. United States—an opinion that threatens to invalidate countless regulatory statutes in which Congress has delegated significant policymaking authority to the Executive Branch. Justice Gorsuch claimed that the “text and history” of the Constitution required the Court to replace a longstanding constitutional doctrine that permits broad delegations with a more restrictive one. But the supposedly originalist arguments advanced by Justice Gorsuch and like-minded scholars run counter to the understandings of delegation that prevailed in the Founding …

Greenbacks, Consent, And Unwritten Amendments, John M. Bickers

Arkansas Law Review

"I remember a German farmer expressing as much in a few words as the whole subject requires: “money is money, and paper is paper.”—All the invention of man cannot make them otherwise. The alchymist may cease his labours, and the hunter after the philosopher’s stone go to rest, if paper cannot be metamorphosed into gold and silver, or made to answer the same purpose in all cases."

Every day Americans spend paper money, using it as legal tender. Yet the Constitution makes no mention of this phenomenon. Indeed, it clearly prevents the states from having the authority to make paper …

Themes From Fallon On Constitutional Theory, Lawrence B. Solum

Faculty Scholarship

Law and Legitimacy in the Supreme Court by Professor Richard Fallon explores the relationship between normative legitimacy and the Supreme Court’s role in constitutional interpretation and construction. This essay interrogates Fallon’s ideas in the context of the great debate between originalism and living constitutionalism via the development of the themes. The first theme focuses on the relationship between Fallon’s views and the originalist claim that constitutional interpretation and construction should be constrained by the original public meaning of the constitutional text. The second theme focuses on Fallon’s development of the idea of reflective equilibrium as a method for constitutional theory …

Habeas Corpus And The Politics Of History, Isaac Cui

Pomona Senior Theses

Vijayakumar Thuraissigiam, a Tamil citizen of Sri Lanka, was apprehended after unlawfully entering the United States. Placed in expedited removal proceedings, which allows for streamlined deportation, Thuraissigiam sought asylum. However, he was found to lack the requisite credible fear of persecution based on a protected status. He petitioned for a writ of habeas corpus to review the legality of that determination. But because the expedited removal process limits federal habeas jurisdiction, his petition was dismissed. He claims that limitation violates the U.S. Constitution’s Suspension Clause, which provides: “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless …

Saving America’S Privacy Rights: Why Carpenter V. United States Was Wrongly Decided And Why Courts Should Be Promoting Legislative Reform Rather Than Extending Existing Privacy Jurisprudence, David Stone

St. Mary's Law Journal

Privacy rights are under assault, but the Supreme Court’s judicial intervention into the issue, starting with Katz v. United States and leading to the Carpenter v. United States decision has created an inconsistent, piecemeal common law of privacy that forestalls a systematic public policy resolution by Congress and the states. In order to reach a satisfactory and longlasting resolution of the problem consistent with separation of powers principles, the states should consider a constitutional amendment that reduces the danger of pervasive technologyaided surveillance and monitoring, together with a series of statutes addressing each new issue posed by technological change as …

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 …

Originalism And Second-Order Ipse Dixit Reasoning In Chisholm V. Georgia, D.A. Jeremy Telman

Cleveland State Law Review

This Article presents a new perspective on the Supreme Court’s constitutional jurisprudence during the Early Republic. It focuses on what I am calling second-order ipse dixit reasoning, which occurs when Justices have to decide between two incommensurable interpretive modalities. If first-order ipse dixit is unreasoned decision-making, second-order ipse dixit involves an unreasoned choice between or among two or more equally valid interpretive options. The early Court often had recourse to second-order ipse dixit because methodological eclecticism characterized its constitutional jurisprudence, and the early Court established no fixed hierarchy among interpretive modalities.

Chisholm, the pre-Marshall Court’s most important constitutional decision, illustrates …

Smith, Scalia, And Originalism, Amul R. Thapar

Catholic University Law Review

To many principled Originalists and proponent of religious liberty, the opinion in Employment Division v. Smith poses a puzzle. Many commentators believe Smith contradicts the original meaning of the Free Exercise Clause and hinders the right to religious freedom. Yet it was written by Justice Scalia, a self-professed Originalist and lion of the law. I attempt to resolve this puzzle, reviewing Justice Scalia’s speeches and opinions on religious liberty. Ultimately, Justice Scalia’s opinion in Smith reflects his commitments to certain jurisprudential principles. Viewing these principles in the light of New Originalism, though, it becomes clear how Smith most likely does …

Justice Gorsuch's Views On Precedent In The Context Of Statutory Interpretation, Hillel Y. Levin

Scholarly Works

The doctrine of precedent, in its stare decisis form, presents a challenge to any originalist. This doctrine provides that a court should (at least sometimes) be bound by its own precedent, even if that precedent was wrongly decided in the first place. Yet if the original meaning of the text at issue is a judge’s focus, why should an intervening decision of the court—and a mistaken one at that— matter at all? Despite this tension, every originalist also at least purports to care about precedent.

This Essay focuses on Justice Gorsuch’s apparent views on precedent in the context of statutory …

Opportunistic Originalism And The Establishment Clause, Caroline Mala Corbin

Articles

This Article argues that the Supreme Court's use of originalism is opportunistic because sometimes the Court relies on it, and sometimes it does not. This inconsistency is evident in two recent decisions with significant Establishment Clause consequences: Town of Greece v. Galloway (2014) and Trinity Lutheran Church v. Comer (2017). In Town of Greece, the Supreme Court applied an originalist analysis to uphold the government's policy of sponsoring predominantly Christian prayers before town meetings. In Trinity Lutheran Church, the Supreme Court failed to conduct an originalist analysis of direct government funding to churches before ordering a state to award a …

Functional Equivalence And Residual Rights Post-Carpenter: Framing A Test Consistent With Precedent And Original Meaning, Laura K. Donohue

Georgetown Law Faculty Publications and Other Works

The Carpenter Court held that warrantless access to seven or more days of cell site location information (CSLI) constitutes a violation of the reasonable expectation of privacy that individuals have in the whole of their physical movements. But the grounds on which the Court drew a line characterize all sorts of digital records—including those at issue in Miller and Smith, belying the majority’s claim that the decision leaves third-party doctrine intact. Instead of avoiding Katz’s pitfalls, moreover, the Court emphasized voluntary assumption of risk, doubling down on the subjective nature of judicial determination. The decision will likely lead to …

Originalism And Congressional Power To Enforce The Fourteenth Amendment, Christopher W. Schmidt

Washington and Lee Law Review Online

In this Essay, I argue that originalism conflicts with the Supreme Court’s current jurisprudence defining the scope of Congress’ power to enforce the Fourteenth Amendment. Under the standard established in Boerne v. Flores, the Court limits congressional power under Section 5 of the Fourteenth Amendment to statutory remedies premised on judicially defined interpretations of Fourteenth Amendment rights. A commitment to originalism as a method of judicial constitutional interpretation challenges the premise of judicial interpretive supremacy in Section 5 jurisprudence in two ways. First, as a matter of history, an originalist reading of Section 5 provides support for broad judicial …

What Members Of Congress Say About The Supreme Court And Why It Matters, Carolyn Shapiro

Chicago-Kent Law Review

Republican and Democratic senators took strikingly different approaches to Justice Neil Gorsuch’s confirmation hearing. Republicans focused on judicial process—what judges are supposed to do, how they are constrained, and the significance of the constitutional separation of powers—evoking rhetoric long used by the political right. Democrats, by contrast, focused primarily on case outcomes, complaining, for example, that Gorsuch favored “the big guy” over “the little guy” in cases he decided as a judge on the Tenth Circuit. This Article critiques the Democrats’ failure to discuss judicial process and to promote their own affirmative vision of the judiciary and the Constitution. A …

Nothing New Under The Sun: The Law-Politics Dynamic In Supreme Court Decision Making, Stephen M. Feldman

Pepperdine Law Review

Recent events have seemed to inject politics into American judicial institutions. As a result, many observers worry that the Supreme Court, in particular, has become politicized. According to this view, the Justices should decide cases in accordance with the rule of law and be unmoved by political concerns. These worries arise from a mistaken assumption: that law and politics can be separate and independent in the process of judicial decision making. But at the Supreme Court (as well as in the lower courts, for that matter), decision making arises from a law-politics dynamic. Adjudication in accord with a pure rule …

"We Are All Textualists Now": The Legacy Of Justice Antonin Scalia, Judge Diarmuid F. O'Scannlain

St. John's Law Review

(Excerpt)

One of my favorite extra-judicial activities is meeting with law students, and it is a pleasure to be with you today. But it is a special privilege to come back to the Jamaica campus of St. John’s College from which I graduated 60 years ago, long before the Law School had moved here from Schermerhorn Street in Brooklyn, and when there was only one building on this former golf course.

I was honored to call Justice Scalia a role model and friend. What I hope to convey to you today, however, is the effect Justice Scalia’s tenure on the …

Surprising Originalism, Lawrence B. Solum

Faculty Scholarship

This article takes the reader on a guided tour of contemporary originalist constitutional theory. Most Americans believe that they already know everything they need to know about constitutional originalism. But in many cases, they are mistaken. Contemporary originalists do not believe that we should ask, "What would James Madison do?" Instead, the mainstream of contemporary originalism aims to recover the original public meaning of the constitutional text. Conservatives and libertarians are sure that originalism is a necessary corrective to the liberal excesses of the Warren Court. Progressives have an almost unshakeable belief that originalism is a right-wing ideology that seeks …

Text Over Intent And The Demise Of Legislative History, Thomas W. Merrill, Michael S. Paulsen, Saikrishna Prakash, Lawrence B. Solum, Sandra Segal Ikuta

Faculty Scholarship

The following is the transcript of a 2016 Federalist Society panel entitled: Text Over Intent and the Demise of Legislative History. The panel originally occurred on November 17, 2016 during the National Lawyers Convention in Washington, D.C. The participants were: Prof. Thomas W. Merrill, Charles Evans Hughes Professor of Law, Columbia Law School; Prof. Michael S. Paulsen, Distinguished University Chair and Professor, University of St. Thomas School of Law; Prof. Saikrishna Prakash, James Monroe Distinguished Professor of Law, University of Virginia School of Law; Prof. Lawrence B. Solum, Carmack Waterhouse Professor of Law, Georgetown University Law Center. The moderator was …

Contra Scalia, Thomas, And Gorsuch: Originalists Should Adopt A Living Constitution, R. Randall Kelso

University of Miami Law Review

Two main approaches appear in the popular literature on constitutional interpretation: originalism and non-originalism. An originalist approach refers back to some aspect of the framers’ and ratifiers’ intent or action to justify a decision. A non-originalist approach bases the goal of constitutional interpretation in part on consideration of some justification independent of the framers’ and ratifiers’ intent or action.

What is often unappreciated in addressing the question of whether to adopt an originalist or non-originalist approach to constitutional interpretation is the complication that emerges if one concludes that the framing and ratifying generation believed in the model of a living …

Justice Scalia's Eighth Amendment Jurisprudence: An Unabashed Foe Of Criminal Defendants, Michael Vitiello

Akron Law Review

Justice Scalia’s death has already produced a host of commentary on his career. Depending on the issue, Justice Scalia’s legacy is quite complicated. Justice Scalia’s commitment to originalism explains at least some of his pro-defendant positions. Some of his supporters point to such examples to support a claim that Justice Scalia was principled in his application of his jurisprudential philosophy. However, in one area, Justice Scalia was an unabashed foe of criminal defendants: his Eighth Amendment jurisprudential dealing with terms of imprisonment. There, based on his reading of the historical record, he argued that the Eighth Amendment’s prohibition against cruel …

Justice Scalia And The Idea Of Judicial Restraint, John F. Manning

Michigan Law Review

Review of A Matter of Interpretation: Federal Courts and the Law by Antonin Scalia .

The Tragedy Of Justice Scalia, Mitchell N. Berman

Michigan Law Review

Review of A Matter of Interpretation: Federal Courts and the Law by Antonin Scalia .

Where Does Judge Gorsuch Stand On Limiting The Federal Government?, David J. Reiss

Cornell Law Faculty Working Papers

This week, all eyes are on Judge Gorsuch’s confirmation hearing for a seat on the Supreme Court. While Gorsuch has not explicitly stated that he wants to drown or deconstruct the federal government, there is troubling language in his opinions that indicates that he shares that goal. While this will hearten many a Tea Partyer, moderate Republicans along with Democrats should be wary of someone who does not value the good that the federal government can and does do.

The Judicial Legacy Of Louis Brandeis And The Nature Of American Constitutionalism, Edward A. Purcell Jr.

Touro Law Review

No abstract provided.