Supreme Court of the United States Commons^™

Injury-In-Fact Of Nothing: Why Federal Courts Cannot Certify Classes With Uninjured Members After Labcorp, Jacob Davenport

University of Cincinnati Law Review

No abstract provided.

Enemies To Lovers: An Unsuspecting Friendship In The Journey To Save The Endangerment Finding, Sophie Ballah

University of Cincinnati Law Review

No abstract provided.

The Jurisprudence Of Humanity, Tyler Rose Clemons

Journal of Civil Rights and Economic Development

(Excerpt)

It has become common for Supreme Court Justices—the most powerful legal actors in our society—to explain why “the law” requires them to facilitate, or at least tolerate, terrible human suffering. Such claims are wrong, not just morally but legally. More specifically, they expose the decisions of the Roberts Court as a based on a jurisprudence of nihilism, one that justifies human suffering through vague appeals to the rule of law. These appeals, in turn, thinly conceal a substantive political and moral project.

To support this claim, I proceed in five parts. Part I introduces Albert Camus’s account of nihilism …

Words Matter: The Rhetoric Of National Security And The Reality Of Individual Rights, Christopher J. Borgen

Journal of Civil Rights and Economic Development

(Excerpt)

While the meanings of words can be flexible or contested, they are not infinitely pliable. These limits on words and their uses help define the outer bounds of legitimate state action. However, even the written law is only as stable as our interpretation of what those words mean. There is the risk that a deliberate and persistent misuse of words by states and other actors can eventually change our understanding of the law it.

Some of my work has analyzed the use of words and phrases such as “self-determination,” “sovereignty,” and “secession.” But, in this Essay, I focus on …

Nonparty Claim Preclusion, Mark D. Rosen

Texas A&M Law Review

For nearly two centuries, American courts recited that the preclusive effects of a court’s final judgment were subject to a requirement of “mutuality,” meaning that a party in Lawsuit 2 who would not be bound by a judgment from a prior Lawsuit 1 could not benefit in Lawsuit 2 from the first lawsuit’s judgment either. While the Supreme Court eliminated the mutuality requirement for issue preclusion in the 1970s—paving the way for “nonmutual collateral estoppel”—to this date, the Court has not decided if mutuality remains a requirement for claim preclusion. Although many courts today insist there is no such thing …

Rahimi's Goldilocks Dilemma: Finding The "Just Right" Age Of Tradition, James M. Handwerk

Texas A&M Law Review

Although its edges are obscured with unresolved tension, the Supreme Court’s recent sortie into Second Amendment interpretation sparked a new era of historical scrutiny. Some question whether the various difficulties present in the new framework render the doctrine unworkable. Rahimi’s Goldilocks Dilemma examines the interpretive obstacles posed by the text, history, and tradition framework, which was brought to light in New York State Pistol & Rifle Ass’n v. Bruen and United States v. Rahimi. Particularly, this Comment focuses on the role that pre-ratification history plays in finding “relevant” historical analogs. Pre-ratification history, as defined by this Comment, includes …

Antidiscrimination, Not Anti-Dei: The Real Story Of The Supreme Court’S Recent Title Vii Precedent, Madeline Meth

BYU Law Review

For several years, my colleague and I had been litigating employment discrimination cases with facts that shocked our friends and family. For example, we fought Dallas County over a women-work-the-weekend policy that required women detention officers to work weekends while male colleagues took the weekends off. Likewise, we challenged the City of Cleveland when it moved our client, an emergency medical services supervisor, from the day shift to the night shift explicitly because he is Black. Then, in April 2024, in one of our client’s cases, Muldrow v. City of St. Louis, the U.S. Supreme Court unanimously overruled the decades …

Popular Constitutionalism In A Populist Age, Thomas G. Donnelly

BYU Law Review

Popular constitutionalism burst onto the scene as a challenge to the constitutional authority of the Supreme Court. Decades later, popular constitutionalists remain susceptible to one of the earliest (and most potent) critiques of their project—the charge that they have done far too little to explain how their theory might work in practice. With the rise of modern populism, it’s also fair to ask whether popular constitutionalism is an approach that’s capable of meeting the challenges of the current constitutional moment. In this Article, I offer a new vision for popular constitutionalism—one that shows how the theory might work in practice, …

Open And Shut: Non-Removal Statutesand Door-Closing Penalties, Isaac Zwerling

Pepperdine Law Review

There is a longstanding tension in the Court’s treatment of non-removal statutes and door-closing penalties. On the one hand, the Court has held non-removal statutes—business registration statutes that condition a foreign corporation’s license on that corporation’s right to remove cases brought against it to federal court—pose an unconstitutional limit on federal court access. On the other, the Court has extended door-closing penalties statutes prohibiting unregistered foreign corporations from initiating an action in the forum state—to federal courts sitting in diversity. This Article surveys how the Court arrived at this puzzling result. It does so by analyzing each line of cases …

Judicial Appointments Before Vacancies, Vasan Kesavan

Pepperdine Law Review

Appointments are about power—presidential power. There is no greater presidential appointment power than the power to appoint federal judges who are expected to serve for life. Judicial appointments allow the President to shape one branch of the federal government for decades to come, perhaps decisively, thereby helping to define his legacy. Of all judicial appointments, there is nothing more significant than appointments to the Supreme Court, if the President even has the opportunity during his term. But these appointments are the most difficult for the President to make in the most partisan political period in our lifetimes. May a President, …

Corporate Employment And The First Amendment Shield Against Anti-Dei Legislation, W. Mary Blee

Brooklyn Journal of Corporate, Financial & Commercial Law

No one would have thought that a Supreme Court ruling striking down affirmative action in higher education would affect private employment. However, the ruling in Students for Fair Admissions v. Harvard did exactly that. Corporate employers’ efforts to foster diversity, equity, and inclusion (DEI) were immediately pushed to the forefront of the political battlefield. In the eyes of Republican lawmakers and politicians, DEI efforts were akin to affirmative action, and therefore unconstitutional in the wake of Harvard. Their solution to this problem involved passing anti-DEI legislation and policies which restricted or eliminated employer’s DEI efforts under the guise of upholding …

Legal Academia And Permanent Democracy: The Fault In Our Law Schools, Sara Dillon

DePaul Journal for Social Justice

It is widely recognized that the American Constitution is failing as the foundational document of a modern democracy. Although many basic principles of constitutionalism have faded into irrelevance, with rising authoritarianism eclipsing such core ideals as judicial independence, separation of powers and restraints on arbitrary use of power, America’s nearly 200 institutions of legal teaching and scholarship have provided little in the way of proposals for urgently needed law reform. It is striking that even with so many high-powered academic institutions, so few meaningful proposals for constitutional change have been presented to the public as a way out of our …

The Search For Moby Dick: The Role Of State Law In Maritime Tort Cases, John E. Holloway

Washington and Lee Law Review Online

In 1917, the United States Supreme Court held in Southern Pacific v. Jensen that a state statute is invalid if it “interferes with the proper harmony and uniformity of [the general maritime law].” Over a century after Jensen, we still do not know the limits of this “uniformity principle.” Just two years ago, the United States Supreme Court found that this question—what is the role of state law in maritime cases?—remains “one of the most perplexing in the law.”

This Article tracks the Court’s struggle to make sense of the Uniformity principle. It surveys the Court’s inconsistent rulings and criticisms …

The Influence Of The Federalist Society On Originalism In Supreme Court Opinions, Edoardo Santopuoli

Honors Theses

This thesis will investigate the influence of the Federalist Society on the use of originalism in Supreme Court opinions. To investigate this influence, justices that served on the Supreme Court from 1994 to 2022 are categorized based on whether or not they are affiliated with the Federalist Society. Then using artificial intelligence (ChatGPT version 5.3), ten Supreme Court opinions known to be originalist are used as a baseline for artificial intelligence to know what an originalist opinion looks like. Then, all majority opinions of the Supreme Court from that timeframe are scored from 1-10, with 10 meaning an opinion is …

Cornerstones And Keystones: Confronting Stealth Attacks On The Regulatory State, Michael Allan Wolf

UF Law Faculty Publications

This Article is the first to identify the Roberts Court’s pattern of stealth overruling of several takings precedents by neutralizing or ignoring essential language from prior decisions. The Article explores six examples of this phenomenon and proposes a framework for identifying when a subsequent Court’s critical assessment of key language from a prior decision, whether it technically qualifies as a “holding” or not, necessitates consideration of the stare decisis factors used in Dobbs v. Jackson Women’s Health Organization. Rather than focusing on the sometimes-arbitrary distinction between holding and dictum, the Article introduces two other indicia of precedential language that …

Vaccines, Religious Liberty, And The Gvr As Doctrinal Signal, Zalman Rothschild

Articles

This Essay proceeds in four Parts. Part I traces the doctrinal baseline, showing that vaccines have long functioned as the limit case for religious liberty. Part II briefly describes the doctrinal changes of the COVID-19 era — the Supreme Court’s expansion of religious equality doctrine, and its emergency-docket denials that left vaccine mandates formally unresolved — before explaining why the GVR in Miller signals a different move: the extension of the religious liberty framework to vaccine mandates, bypassing the comparability analysis that had allowed most courts to sustain them under the equality model. Part III turns to Miller itself and …

Fifty Ways To Leave Your Lover: Using State Constitutions To Escape The Dead Hand Of Article V, Meg Penrose

Faculty Scholarship

Thomas Jefferson believed that “the earth always belongs to the living generation.” His constitutional approach would empower twenty-first century Americans to decide twenty-first century problems regularly determined by the United States Supreme Court. Article V, the formal method for constitutional change, seemingly relegates these decisions to the Supreme Court because amending the federal Constitution is nearly impossible.

Unfortunately, our fixation on federal constitutional law often eclipses the power of state constitutional law. State constitutions balance our relatively static federal Constitution with responsive state governments. There is no need to debate what the Framers thought about modern issues when Americans can …

Court-Stripping, Court-Packing, And Court Defying: Revisiting The Supreme Court’S Essential Functions, Curtis A. Bradley, Neil S. Siegel

Faculty Scholarship

The "essential functions thesis" is one of the most famous structural arguments in the field of federal courts. The thesis, which has been endorsed by a number of prominent scholars and the executive branch, posits that there are implicit, structural limits on Congress's authority to "strip" the Supreme Court of its appellate jurisdiction. Court-stripping, the thesis contends, is not allowed if it would undermine the essential functions of the Court-in particular, maintaining the supremacy and uniformity of federal law. In this Article, we revisit that thesis with three goals in mind. First, we aim to show that the structural arguments …

The Unitary Executive And The Federal Reserve, Lev Menand

Fordham Law Review

The U.S. Supreme Court may soon embrace an interpretation of the U.S. Constitution that would significantly expand the power of the president over federal administrators and invalidate key provisions in dozens of federal statutes. A critical question is whether this interpretation—known as the unitary executive theory (UET)—would also render unconstitutional central bank independence (CBI), an arrangement where a country’s monetary policy is formulated by a semiautonomous body of experts insulated from partisan political pressure. Several justices have suggested that it would not, and a growing scholarly literature has proposed ways for the Court to distinguish the country’s central banking apparatus …

Is Bruen The New Usery?, Tonja Jacobi, Cory Conley

William & Mary Law Review

In 2022, in New York State Rifle & Pistol Ass’n v. Bruen, the Supreme Court revolutionized the Second Amendment, achieving the long-held conservative goal of limiting gun restrictions by imposing an expansive, originalist view of the right to bear arms. However, within just three years, Bruen is showing cracks. Lower court judges are struggling mightily to apply it and are expressing their frustrations in exceptionally frank ways. And already the Supreme Court, in Rahimi v. United States, was forced to reconsider its approach. The Court has been here before, when it tried to revitalize the Tenth Amendment in …