Supreme Court of the United States Commons^™

All Bathwater, No Baby: Expressive Theories Of Punishment And The Death Penalty, Susan A. Bandes

Michigan Law Review

A review of Carol S. Steiker and Jordan M. Steiker, Courting Death: The Supreme Court and Capital Punishment.

Why The Burger Court Mattered, David A. Strauss

Michigan Law Review

A review of Michael J. Graetz and Linda Greenhouse, The Burger Court and the Rise of the Judicial Right.

The Supreme Court's Constitutional "Bright Line": Preempting Authority Of 47 Of 50 States, Steven Ferrey

Suffolk University Law School Faculty Works

The Supreme Court unanimously stripped 47 of the 50 states of their authority to regulate key commerce. In Hughes v. Talen Energy Marketing, the Court withdrew from state authority the power over law applicable to, and now controlling, what is identified as the second most important invention in history.

The transcendent constitutional question is whether this unanimous Supreme Court decision expands constitutional “field preemption” to permanently withhold from 47 states this power, or only employs “conflict preemption” to preempt this one single challenged state regulation. This article examines and esolves that the Court chose “field preemption” to permanently crimp and …

Sex And Religion: Unholy Bedfellows, Mary-Rose Papandrea

Michigan Law Review

A review of Geoffrey R. Stone, Sex and the Constitution: Sex, Religion, and Law from America's Origins to the Twenty-First Century.

Precedent And Disagreement, Glen Staszewski

Michigan Law Review

A review of Randy J. Kozel, Settled Versus Right: A Theory of Precedent.

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 …

Third Circuit Confusion: Ncaa V. Christie And An Opportunity To Defend Federalism, Zachary Buckheit

Duke Journal of Constitutional Law & Public Policy Sidebar

NCAA v. Christie will determine whether a federal statute that prevents a state legislature from repealing a previously enacted state law violates the anti-commandeering doctrine. In 2014, New Jersey passed a state law repealing state prohibitions against sports wagering in Atlantic City. Five sports leagues sued New Jersey in federal court. The leagues asserted that the new state law violated the Professional and Amateur Sports Protection Act (“PASPA”), a federal law. New Jersey claimed PASPA violated the anti-commandeering doctrine and was accordingly unconstitutional. The Third Circuit Court of Appeals held that PASPA does not violate the anti-commandeering doctrine because it …

Husted V. A. Philip Randolph Institute: How Can States Maintain Their Voter Rolls?, Chris Smith

Duke Journal of Constitutional Law & Public Policy Sidebar

In Husted v. A. Philip Randolph Institute, the Supreme Court will decide whether the Ohio’s Supplemental Process for maintaining its voter rolls violates the requirements of the National Voter Registration Act (“NVRA”) and the Help America Vote Act (“HAVA”). The Court’s opinion will shape the landscape of voting rights, as many states are struggling to meet the dual mandates of election sanctity and increased voter access. This commentary argues that the Supreme Court can give states a guideline for what is an acceptable process that complies with the conflicting federal policies in the NVRA and HAVA. The Court should …

Patchak V. Zinke, Separation Of Powers, And The Pitfalls Of Form Over Substance, Michael Fisher

Duke Journal of Constitutional Law & Public Policy Sidebar

Mr. Patchak was a concerned citizen with standing to bring a suit against the federal government. A previous Supreme Court decision, Carcieri v. Salazar, made it clear that Mr. Patchak would win his case. Congress, however, did not want him to do so. Congress passed, and President Obama signed, the Gun Lake Act, which effectively ordered Mr. Patchak’s suit to be dismissed. Mr. Patchak’s suit was subsequently dismissed, and he appealed on the grounds that the Gun Lake Act violated separation of powers principles.

National Association Of Manufacturers V. Department Of Defense, Summer L. Carmack

Public Land & Resources Law Review

In an attempt to provide consistency to the interpretation and application of the statutory phrase “waters of the United States,” as used in the Clean Water Act, the EPA and Army Corps of Engineers together passed the WOTUS Rule. Unfortunately, the Rule has created more confusion than clarity, resulting in a number of lawsuits challenging substantive portions of the Rule’s language. National Association of Manufacturers v. Department of Defense did not address those substantive challenges, but instead determined whether those claims challenging the Rule must be filed in federal district courts or federal courts of appeals. In its decision, the …

Carpenter V. United States: How Many Cell Phone Location Points Constitute A Search Under The Fourth Amendment?, Douglas Harris

Duke Journal of Constitutional Law & Public Policy Sidebar

In Carpenter v. United States, the Supreme Court will decide whether the government’s acquisition of a suspect’s cell site location information (“CSLI”) during an ongoing criminal investigation is a “search” under the Fourth Amendment, and thus requires a showing of probable cause to obtain a warrant. This opinion will have future consequences for Americans and their privacy interests as cell sites continue to be built and CSLI records increasingly contain more private information about cell phone users. This commentary argues that that the necessity of owning and using cell phones renders past tests obsolete. With wavering, subjective expectations of …

Losing The Spirit Of Tinker V. Des Moines And The Urgent Need To Protect Student Speech, David L. Hudson, Jr.

Et Cetera

Although the United States Supreme Court has held that public school students maintain freedom of speech and expression in school, courts have continued to restrict these Constitutional rights for these students. The speech protective standard from Tinker has gone from being speech protective to a test that favors and is deferential to school officials embroiled in students’ free-speech controversies. We need to regain the attitude of gratitude for students and their rights.

This abstract was written after publication by 2023-2024 Et Cetera Editor-in-Chief Philip Shipman

King's Domain, Mila Sohoni

Notre Dame Law Review

In King v. Burwell, the Supreme Court called the tax-credit provision of the Affordable Care Act ambiguous—but then invoked the major questions exception to Chevron deference and proceeded to resolve the provision’s meaning for itself. Litigants and commentators quickly recognized that King had the potential to destabilize Chevron. If King exempts from Chevron deference anything that is “major,” then Chevron’s significance will necessarily be diminished, as agencies will only enjoy deference on their answers to questions of “minor” import; the major questions exception may swallow Chevron’s rule.

This Essay, prepared for a symposium held by the …

A Unifying Approach To Nexus Under The Dormant Commerce Clause, Adam B. Thimmesch

Michigan Law Review Online

The Supreme Court has long debated the existence and scope of its power to restrict state regulation under the so-called negative or dormant Commerce Clause. The Court took a broad view of that power in the late 1800s, but it has refined and restricted its role over time. One area where the Court has continued to wield considerable power, however, has been in the context of state taxes. Specifically, the Court has continued to restrict states' power to compel out-of-state vendors to collect their sales and use taxes based on a physical-presence "nexus" rule. That rule dates back to the …

Nonmajority Opinions And Biconditional Rules, Adam N. Steinman

Faculty Scholarship

In Hughes v. United States, the Supreme Court will revisit a thorny question: how to determine the precedential effect of decisions with no majority opinion. For four decades, the clearest instruction from the Court has been the rule from Marks v. United States: the Court's holding is "the position taken by those Members who concurred in the judgments on the narrowest grounds." The Marks rule raises particular concerns, however, when it is applied to biconditional rules. Biconditionals are distinctive in that they set a standard that dictates both success and failure for a given issue. More formulaically, they combine an …

A Non-Originalist Separation Of Powers, Eric J. Segall

University of Richmond Law Review

No abstract provided.

The President, Prosecutorial Discretion, Obstruction Of Justice, And Congress, Henry L. Chambers Jr.

University of Richmond Law Review

No abstract provided.

Delegation Enforcement By State Attorneys General, Jonathan David Shaub

University of Richmond Law Review

No abstract provided.

States Suing The Federal Government: Protecting Liberty Or Playing Politics?, Elbert Lin

University of Richmond Law Review

No abstract provided.

The Fortification Of Inequality: Constitutional Doctrine And The Political Economy, Kate Andrias

Articles

As Parts I and II of this Essay elaborate, the examination yields three observations of relevance to constitutional law more generally: First, judge-made constitutional doctrine, though by no means the primary cause of rising inequality, has played an important role in reinforcing and exacerbating it. Judges have acquiesced to legislatively structured economic inequality, while also restricting the ability of legislatures to remedy it. Second, while economic inequality has become a cause célèbre only in the last few years, much of the constitutional doctrine that has contributed to its flourishing is longstanding. Moreover, for several decades, even the Court’s more liberal …