Law and Politics Commons^™

Separation Of Church And State: Jefferson, Lincoln, And The Reverend Martin Luther King, Jr., Show It Was Never Intended To Separate Religion From Politics, Samuel W. Calhoun

Washington and Lee Law Review Online

This Essay argues that it’s perfectly fine for religious citizens to openly bring their faith-based values to public policy disputes. Part II demonstrates that the Founders, exemplified by Thomas Jefferson, never intended to separate religion from politics. Part III, focusing upon Abraham Lincoln’s opposition to slavery, shows that religion and politics have been continuously intermixed ever since the Founding. Part IV, emphasizing the Reverend Martin Luther King, Jr., argues that no other reasons justify barring faith-based arguments from the public square.

Taking Judicial Legitimacy Seriously, Luis Fuentes-Rohwer

Chicago-Kent Law Review

Chief Justice Roberts appears worried about judicial legitimacy. In Gill v. Whitford, the Wisconsin gerrymandering case, he explicitly worries about the message the Court would send if it wades into the gerrymandering debate. More explicitly, he worries about “the status and integrity” of the Court if is seen as taking sides in politically charged controversies. Similarly, during his confirmation hearing, Roberts warned that the Court has a limited role in our constitutional scheme and must stay within it. To decide cases on the basis of policy and not law would compromise the Court’s legitimacy. This Essay is skeptical. For one, …

The Supreme Court And American Politics: Symposium Introduction, Christopher W. Schmidt, Carolyn Shapiro

Chicago-Kent Law Review

No abstract provided.

Above Politics: Congress And The Supreme Court In 2017, Jason Mazzone

Chicago-Kent Law Review

The Supreme Court figured prominently in the November 2016 elections because of the vacancy on the Court that resulted from the death of Justice Antonin Scalia. This Essay picks up the story by examining the place of the Supreme Court in national politics during 2017. It traces congressional efforts to respond to statutory and constitutional rulings by the Court as well as steps to regulate the operations of the Court and the work of the Justices. Although in 2017 Republicans and Democrats introduced numerous bills directed at the Court, these bills were generally modest in scope and, even so, did …

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 …

Will The Supreme Court Still “Seldom Stray Very Far”?: Regime Politics In A Polarized America, Kevin J. Mcmahon

Chicago-Kent Law Review

This Article examines the concept of a “minority Justice,” meaning a Supreme Court Justice appointed by a President who had failed to win the popular vote and confirmed with the support of a majority of senators who had garnered fewer votes in their most recent elections than their colleagues in opposition. Specifically, Neil Gorsuch was the first “minority Justice,” receiving the support of senators who had collected nearly 20 million fewer votes than those in opposition (54,098,387 to 73,425,062). From there, the Article considers the significance this development, first by examining some of the foundational work of the regime politics …

The Forgotten Issue? The Supreme Court And The 2016 Presidential Campaign, Christopher W. Schmidt

Chicago-Kent Law Review

This Article considers how presidential candidates use the Supreme Court as an issue in their election campaigns. I focus in particular on 2016, but I try to make sense of this extraordinary election by placing it in the context of presidential elections over the past century.

In the presidential election of 2016, circumstances seemed perfectly aligned to force the Supreme Court to the front of public debate, but neither Donald Trump nor Hillary Clinton treated the Court as a central issue of their campaigns. Trump rarely went beyond a brief mention of the Court in his campaign speeches; Clinton basically …

Keynote Address: Judging The Political And Political Judging: Justice Scalia As Case Study, Richard L. Hasen

Chicago-Kent Law Review

This is a revised version of a Keynote Address delivered at “The Supreme Court and American Politics,” a symposium held October 17, 2017 at the Chicago-Kent College of Law. In this Address, Professor Hasen considers through the lens of Justice Scalia’s opinions the role that views of the political process play, at least rhetorically, in how Supreme Court Justices decide cases. It focuses on Justice Scalia’s contradictory views on self-dealing and incumbency protection across a range of cases, comparing campaign finance on the one hand to partisan gerrymandering, voter identification laws, political patronage, and ballot access rules on the other. …

Neil Gorsuch And The Ginsburg Rules, Lori A. Ringhand, Paul M. Collins Jr.

Chicago-Kent Law Review

Supreme Court nominees testifying before the Senate Judiciary Committee frequently invoke the so-called “Ginsburg Rule” to justify not answering questions posed to them. According to this “rule,” nominees during their testimony must avoid signaling their preferences about previously decided Supreme Court cases or constitutional issues. Using empirical data on every question asked and answered at every hearing from 1939–2017, we explore this “rule,” and its attribution to Justice Ruth Bader Ginsburg. We demonstrate three things. First, the Ginsburg Rule is poorly named, given that the practice of claiming a privilege to not respond to certain types of questions predates the …

The Consequences Of Citizens United: What Do The Lawyers Say?, Ann Southworth

Chicago-Kent Law Review

This Essay examines a polarized world of advocacy over campaign finance regulation in the Roberts Court. It considers what lawyers who filed party and amicus briefs in Citizens United v. Federal Election Commission have to say about the consequences of the decision. It shows that the lawyers generally agree about the ruling’s direct consequences but strongly disagree about whether those consequences are good or bad for the country and what lessons the public should draw. This Essay also explores the competing frames that these lawyers bring to questions about money in politics and their competing perspectives about government and where …

Effects Of Senate Bill 4 On Wage-Theft: Why All Workers Are At Risk In Low-Income Occupations, Daniella Salas-Chacon

The Scholar: St. Mary's Law Review on Race and Social Justice

Abstract forthcoming

Undocumented Crime Victims: Unheard, Unnumbered, And Unprotected, Pauline Portillo

The Scholar: St. Mary's Law Review on Race and Social Justice

Abstract forthcoming

Avian Jurisprudence And The Protection Of Migratory Birds In North America, Marshall A. Bowen

St. Mary's Law Journal

Abstract forthcoming

The Republic In Long-Term Perspective, Richard Primus

Michigan Law Review Online

Every system of government eventually passes away. That's a feature of the human condition. The United States has been an unusually stable polity by the standards of world civilizations, and for that stability Americans should be deeply grateful. But no nation is exempt from the basic forces of history. It is not reasonable to think that the constitutional republic we know will last forever. The question is when it will meet its end-in our lifetimes, or in our grandchildren's, or centuries later. Given the stable conditions that living Americans were socialized to expect, the dominant intuition is probably something like …

The Seventeenth Amendment: The United States Senate And The Transformation From Legislative Selection To Direct Popular Election, John Joseph Janora

History Theses

The passage of the Seventeenth Amendment helped to democratize the United States Senate and tied the legislative branch closer to the people, but it undermined the links between the state and the federal systems. Any thoughtful discussion on the Progressive Era will generally lead towards the idea of increased involvement of both the government, at all levels, in the lives of the general population, and the increased involvement of the general population in the functioning of the government at large. One seemingly obvious decision made in the early part of the 20^th century was the implementation of the Seventeenth …

Sanctuary Cities And The Trump Administration: The Practical Limits Of Federal Power, Joshua W. Dansby

The Scholar: St. Mary's Law Review on Race and Social Justice

On January 25, 2017, President Donald J. Trump signed an executive order with the supposed purpose of enhancing public safety of the interior of the United States. Part of the Administration’s plan includes threatening “sanctuary jurisdictions,” also known as “sanctuary cities,” with the loss of federal funds for failing to comply with federal law, specifically 8 U.S.C. § 1373.

There are several problems with this plan: (1) there is no solid definition for what makes a city a “sanctuary;” (2) if we accept the Administration’s allusion that a sanctuary jurisdiction is one that “willfully” refuses to comply with 8 U.S.C. …

Sites Of Storytelling: Supreme Court Confirmation Hearings, Patrick Barry

Articles

Supreme Court confirmation hearings have an interesting biographical feature: before nominees even say a word, many words are said about them. This feature— which has been on prominent display in the confirmation hearings of Judge Brett Kavanaugh—is a product of how each senator on the confirmation committee is allowed to make an opening statement. Some of these statements are, as Robert Bork remembers from his own confirmation hearing, “lavish in their praise,” some are “lavish in their denunciations,” and some are “lavish in their equivocations.”1 The result is a disorienting kind of biography by committee, one which produces not one …

Three Theses On The Current Crisis Of International Liberalism, David S. Grewal

Indiana Journal of Global Legal Studies

This essay advances three theses on the current crisis of international liberalism. First, it is a composite one, comprising interrelated crises of domestic political representation and of global governance affecting the international and supranational arrangements that were constructed in the post-war period. Second, the crisis is a specific development of neoliberal governance, which requires distinguishing international liberalism's two historical variants: "embedded liberalism" and "neoliberalism." The turn from the post-war regime of "embedded liberalism" to the "neoliberalism" of recent decades has had the effect of undoing the domestic social contracts that underlay post-war political stability even while failing to secure peace …

Righting A Wrong: Woodrow Wilson, Warren G. Harding, And The Espionage Act Prosecutions, David Forte

Law Faculty Articles and Essays

This is a story of excess and reparation. It is a chronicle of one President from the elite intellectual classes of the East, and another from a county seat in the heartland. Woodrow Wilson was the college president whose contribution to the art of government lay in the principle of expertise and efficiency. When he went to war, he turned the machinery of government into a comprehensive and highly effective instrument for victory. For Wilson, it followed that there could be little tolerance for those who impeded the success of American arms by their anti-war propaganda, draft resistance, or ideological …

Reflections On The Future Of Global Legal Studies, Mark Fathi Massoud

Indiana Journal of Global Legal Studies

This Article proposes a set of theoretical ideas and practical innovations for the future of global legal studies in the three areas that make up the academic profession: research, teaching, and service. The future directions of global legal studies will involve building intellectual bridges that connect law with global politics, society, history, religion, and human behavior. Constructing these bridges preserves global legal studies as both an interdisciplinary enterprise and a movement for justice. This twin commitment to rigorous inquiry and social justice involves sustaining a welcoming community for graduate students and early career scholars, and prioritizing the experiences of those …