Supreme Court of the United States Commons^™

The Enduring Crisis In Teaching Constitutional Law, Patrick J. Sobkowski

Emory Law Journal Online

Constitutional law is in crisis. The 6-3 conservative majority of the Supreme Court has generally produced the desired results of the current Republican Party. This has led to calls of illegitimacy, activism, and partisanship from left-liberal and progressive scholars and politicians. In 2024, Jesse Wegman published an opinion essay in the New York Times documenting these criticisms from progressive law professors. In this essay, I argue that there is nothing unique about the current crisis. Rather, the political nature of cases is a result of “juristocracy,” which knows no party. In light of this, I provide important context and argue …

Legislative Reforms To End Lawfare By State And Local Prosecutors, Elizabeth Beske

Legislative Testimony & Comments

WASHINGTON, D.C. - The House Judiciary Subcommittee on the Constitution and Limited Government will hold a hearing on Tuesday, March 4, 2025, at 2:00 p.m. ET. The hearing, "Legislative Reforms to End Lawfare by State and Local Prosecutors," will examine the use of lawfare tactics by the Biden-Harris Administration to weaponize the rule of law against political opponents. It will further highlight legislative reforms to end politically motivated state and local prosecutions.

National Origin Bias And U.S. Public Opinion On Supreme Court Nominees: Evidence From A Conjoint Experiment, Christopher P. Dinkel, Andrew Ifedapo Thompson, Marc C. Mcallister

Pace Law Review

As the ultimate arbiter of the interpretation of federal law and the U.S. Constitution, the U.S. Supreme Court has a significant impact on businesses and individuals across an increasingly diverse country. Although the vast majority of the Justices who have served on the Court have been white males, recent Presidents have appointed nominees who have brought greater racial and gender diversity to the Court. Despite these efforts, however, not a single U.S. Supreme Court Justice in the past six decades has been born abroad, even though Americans who were born outside the United States constitute nearly a tenth of the …

Amicus Briefs, Retired Senior Military Officers, And The Judiciary: A Unique "Friend Of The Court," In The Constitutional Construct Of Civil And Military Relations, Joshua E. Kastenberg

Cleveland State Law Review

Military organizations, and particular, small groups of retired flag officers (generals and admirals) have increasingly filed amicus briefs to the United States Supreme Court and the federal courts of appeal. Most prominent among these are the “Becton Brief,” a group of largely Vietnam Veterans who were concerned that the Court would end any ability of the higher education system to consider race in admissions. Named after Julius Becton, a retired Army general, Vietnam Veteran, and former FEMA director, the brief’s signatories included General Norman Schwarzkopf and Admiral William Crowe, the former chairman of the joint chiefs of staff. The brief …

Diabetes Behind Bars: Dissecting Diabetic Deliberate Indifference And Delivering Inmates A More Workable Standard Under The Fourth Amendment, Maggie J. Malloy

Cleveland State Law Review

This Note examines the inadequacies of the current Eighth Amendment framework in safeguarding the constitutional rights of diabetic inmates. It contends that the subjective element of the two-pronged Eighth Amendment claim—often used to assess deliberate indifference—leads to unfair and inconsistent outcomes. To address these shortcomings, this Note draws inspiration from the objective analysis employed in Fourth Amendment excessive force claims, specifically referencing the Supreme Court’s decision in Graham v. Connor. This new framework eliminates the subjective element, and instead replaces it with three objective factors courts should consider when evaluating Eighth Amendment violations related to diabetic medical care. Through …

Rivers V. Guerrero, Meagan R. Hurley

Articles

Danny Rivers sought federal habeas relief, arguing that his trial counsel was ineffective. Rivers’s petition was denied, but while his initial habeas appeal was pending, he initiated a second filing to include new information that his prior counsel failed to utilize in an exculpatory report supporting his innocence. Applying 28 U.S.C. § 2244(b)(2), the district court determined it was “without jurisdiction to entertain” the new evidence because Rivers’s filing was a “second or successive” petition. The Fifth Circuit of Appeals agreed.

Dobbs And The New Doctrine Of Stare Decisis, Russell A. Miller

William & Mary Bill of Rights Journal

Alongside the historic and troubling annulment of the half-century-old Substantive Due Process right to abortion, Dobbs produced another significant outcome. To get its substantive constitutional law result, the Court’s majority also had to reconceive—and significantly weaken—the doctrine of stare decisis. This was necessary because, following Planned Parenthood of Southeastern Pennsylvania v. Casey, the constitutional right to abortion largely depended on respect for precedent as the basis for its survival. To overturn Roe, the Dobbs majority had to blast through the established practice of precedent and articulate a new doctrine of stare decisis. It seems that precedent …

Can Prosecutors' Offices Preserve Public Confidence In Their Nonpartisanship - And, If So, How?, Rebecca Roiphe, Bruce Green

Articles & Chapters

Politicians, the media, and others erode public confidence in prosecutors by accusing them of “weaponizing” their power in cases with political implications. This essay argues that prosecutors’ offices have a responsibility not only to do their work in accordance with professional norms, training and policy that call for nonpartisan decision-making, but also to make affirmative efforts to restore and preserve public faith that prosecutors are in fact acting neutrally, objectively and impartially. Despite limits to what prosecutors’ offices can do in the current climate, this essay suggests some possible measures to counteract the perception of political bias.

Brown Now: The Surprising Possibility Of Progressive Reform, Louis Michael Seidman

William & Mary Law Review

For four decades, the Supreme Court has engaged in a determined, systematic, and successful effort to transform and tame Brown v. Board of Education. But there is a surprising counterweight to this standard narrative. If one takes modern doctrine seriously, the Supreme Court’s refashioning of Brown has the potential to support some progressive goals. The modern Court’s decisions provide a basis for upholding race-conscious but facially neutral measures that promote racial diversity, striking down legacy admission standards in colleges and universities, and strictly scrutinizing laws that discriminate based on sexual orientation. The last Part of this Article speculates about …

Why You Cannot Find A Swing Justice When You Really Need One, Neal Devins

William & Mary Law Review

From Richard Nixon’s 1972 appointment of swing Justice Lewis Powell until Donald Trump’s 2018 appointment of Brett Kavanaugh (to replace swing Justice Anthony Kennedy), the swing Justice ruled the roost. Sometimes voting with the Court’s conservatives and other times with its liberals, the swing Justice often cast the deciding vote and often embraced a sui generis middle ground. Those days now seem like a distant memory. An ideologically simpatico majority coalition drives the post-2018 Roberts Court (especially after Justice Amy Coney Barrett filled Justice Ruth Bader Ginsburg’s seat in 2020). In this Article, I will use the Court’s affirmative action …

Taxes And Certainty: Challenges In Judicial Review Of U.S. Tax Legislation, Reuven S. Avi-Yonah, Moshe Jaffe

Law & Economics Working Papers

The application of judicial review to tax legislation presents unique challenges and inconsistencies. Unlike other forms of legislation, tax laws in the United States are seldom invalidated by the Supreme Court, and when this does occur, it is done using various and inconsistent tests, suggesting a need for a more balanced and effective approach. This paper explores the U.S. court's approach to judicial review in tax cases, empirically analyzing the methods and tests used in key decisions. The findings will reveal a complex and inconsistent picture, highlighting the need for a more coherent approach. Additionally, the research will analyze several …

The Court We Need: Why The Supreme Court Is Worth Saving—Especially From Itself With Professor Steven I. Vladeck, Stephen I. Vladeck

2025 Event Invitations

For all of the ink that has been spilled over the Supreme Court in recent years, no one has been able to bridge the growing divide between those who think we should bury the Court and those who think we should praise it. Meanwhile, public faith in the Court continues to decline. The result has been an erosion of the Court’s moral authority and an impasse about how to restore it at the exact moment when we most need it—with the other institutions of government increasingly unable or unwilling to check each other. Now, more than ever, we need a …

Incarcerated Individuals' Lives Do Not Matter: A Fourteenth Amendment Procedural Due Process Problem, Marshall Farber

Et Cetera

This Note examines the Seventh Circuit’s decision in Love v. Vanihel, in which Tony Love lost 5,700 days of good-time credit following the Indiana Department of Corrections’ issuance of Executive Directive #17-09 (“ED 17-09”). Prior to this directive, the state’s disciplinary code capped good-time credit loss at one year per offense, but ED 17-09 imposed significantly harsher sanctions, stripping Love of over 15 years of accrued credit after a single disciplinary infraction. The Seventh Circuit affirmed the district court’s decision, holding that Love had procedurally defaulted and forfeited his due process claims. This Note argues that the Seventh Circuit’s …

Delivery Drivers Deserve The Whole Package: Package Delivery Drivers And The Transportation Worker Exemption Of The Federal Arbitration Act, Evan Kelly

Catholic University Law Review

Package delivery is a ubiquitous part of modern American life, and package delivery driving is a fast-growing occupation in the United States. These drivers work long hours in a fast-paced, highly regimented environment, and because of arbitration agreements they are made to sign, they often cannot go to court to settle disputes with their employers. Under the Federal Arbitration Act (FAA), these arbitration agreements are generally “valid, irrevocable, and enforceable.” However, the FAA includes an exemption (known as the “Transportation Worker exemption”) that excludes arbitration agreements in “contracts of employment for seamen, railroad employees, or any other class of worker …

Post West Virginia V. Epa The Administrative State’S Door Is Still Ajar, Jaclyn Lopez

St. John's Law Review

(Excerpt)

The Supreme Court’s decision in West Virginia v. EPA, which carves out a new rulemaking standard for Congress and federal agencies, may be as significant for its articulation of the Major Questions Doctrine (“MQD”) as it is for its treatment of Article III standing and jurisprudential mootness. This Essay examines lower courts’ subsequent treatment of West Virginia v. EPA to add dimension to the inquiry of whether the new MQD has upended the administrative state or if it is merely another arrow in the quiver for judges that prefer a weaker federal government or nondelegation altogether. It also …

West Virginia V. Epa: Maybe A Big Deal, But Maybe Not, Michael Lewyn

St. John's Law Review

(Excerpt)

In West Virginia v. EPA, the Supreme Court held that the Environmental Protection Agency (“EPA”) lacked statutory authority to enact the Clean Power Plan, an EPA rule that encouraged coal-fired power plants to use non-coal sources of energy. The Court’s decision relied on the “major questions doctrine.” Under this doctrine, even if an unclear statute does not directly prohibit an administrative agency’s action, courts will reject an agency’s action when it is “asserting highly consequential power beyond what Congress could reasonably be understood to have granted.” Because the major questions doctrine is itself unclear, a variety of commentators suggested …

A More Modest Major Questions Doctrine Rooted In The Appointments Clause, Yonatan Gelblum

St. John's Law Review

(Excerpt)

In this Essay, I explore how this constitutional mandate might guide courts adjudicating disputes that arise when agencies interpret ambiguous statutes in a manner granting them powers beyond those expressly vested by Congress. In Part I, I explain when such agency assertions of authority may implicate Appointments Clause limits on office creation. I also demonstrate how the test of Shoemaker v. United States, which assesses whether expanding an officer’s authority creates a new office for Appointments Clause purposes by adding duties not “germane” to existing duties, provides a standard for judicial review of such claims. Agency claims to …

“Major Questions” Malarkey: An Arbitrary And Capricious New Doctrine For Vetoing Controversial Agency Rules, Lars Noah

St. John's Law Review

(Excerpt)

In 2022, after years of hinting at the idea, the United States Supreme Court officially adopted the “major questions” doctrine in West Virginia v. EPA. Commentators have already spilled plenty of ink trying to make sense of what this might portend, but so far seemingly everyone has accepted at face value the Court’s framing of the issue that it confronted in that case. This essay offers a slightly different perspective on the decision and suggests that closer attention to the precise nature of the question posed therein might reveal a distinctive flaw at the heart of the majority’s newfangled …

Climate Change, Democracy, And The Major Questions Doctrine, Joshua Ulan Galperin

St. John's Law Review

(Excerpt)

This brief Essay progresses in four parts. I will first argue that climate change is impacting the Court’s decisionmaking. Next, I will show that the significance of climate change as a modern political issue has caused the Court to downplay the statutory arrangement Congress created in the Clean Air Act. Third, I will suggest that the Court is not genuinely failing to appreciate the design of the Clean Air Act. Instead, the Court is aware of that design and feels the design goes beyond a constitutionally acceptable delegation of legislative power. Confronting the Nondelegation Doctrine head-on, however, would force …

Black Hole Of Administrative Law: The Threat Of An Ever-Expanding Major Questions Doctrine To The Judiciary, Fred B. Jacob

St. John's Law Review

(Excerpt)

Below, this essay explores how an aggressive major questions doctrine could extend its reach to judicial interpretation and the implications of doing so. Indeed, had the Court applied the major questions doctrine to its own judicial holdings in seminal cases such as Bostock v. Clayton County or Allen v. Milligan, it would have flunked. This is also true for West Virginia’s creation of the doctrine itself, which claimed newfound authority to transform administrative law despite Congress’s significant legislative attention to agency rulemaking.

Expansion of the major questions doctrine to cases arising in the courts’ original jurisdiction would …