Supreme Court of the United States Commons^™

Inactive Exercise & Unequal Protection: Espinoza & Carson Under The Equal Protection Clause, Griffith B. Bludworth

University of Cincinnati Law Review

No abstract provided.

Education, The First Amendment, And The Constitution, Erwin Chemerinsky

University of Cincinnati Law Review

No abstract provided.

School Matters, Ronna Greff Schneider

University of Cincinnati Law Review

No abstract provided.

Legal And Health Risks Of Abortion Criminalization: State Policy Responses In The Immediate Aftermath Of Dobbs, Adrienne R. Ghorashi, Deanna Baumle

Journal of Law and Health

Major changes to the landscape of abortion law and service delivery have rapidly proliferated since the Supreme Court’s decision in Dobbs, in some cases overnight. Using legal epidemiology methods, the authors of this Article and a team of researchers created a legal dataset that identifies and tracks state laws impacting abortion access in the months immediately following the Dobbs ruling. This Article explores the dataset's findings, detailing changes in abortion laws including abortion bans and related penalties, interstate shield laws, and data privacy protections, from June 1, 2022 through January 1, 2023. While several states moved quickly to restrict …

The Immorality Of Originalism, Jack M. Beermann

Catholic University Law Review

The central claim of this essay is that in interpreting the U.S. Constitution, it is immoral to choose original intent over social welfare, broadly conceived. Once this argument is laid out and defended on its own terms, I support the central claim with a variety of arguments, including the defective process pursuant to which the Constitution was enacted, the deeply flawed substantive content of the Constitution, the incongruity of fidelity to the views of a generation of revolutionaries, the current virtual imperviousness of the Constitution to amendment, the failure of the Constitution to resolve fundamental questions concerning the allocation of …

America’S Two Pastimes: Baseball And Constitutional Law; Review Of Adrian Vermeule, Common Good Constitutionalism, Paul J. Larkin

Catholic University Law Review

For the last 50 years, the two prevailing constitutional interpretation methodologies have been Originalism and Living Constitutionalism. The former treats the Constitution almost like a contract and demands that interpreters focus on the ordinary contemporary understanding its terms would have received when they became law. The latter treats the Constitution as a charter for the structure of a new government that would survive and mature as needed to protect both the nation and its people as new threats to government and civil liberties arise. Professor Adrian Vermeule’s book Common Good Constitutionalism offers a new approach to constitutional interpretation, one that …

What Would Happen To All Of The Prior Chevron Cases In A Non-Chevron World?, Aaron-Andrew P. Bruhl

Popular Media

No abstract provided.

On The Place Of Self-Defense In Public Life: A Hobbesian Critique Of The Supreme Court’S Second Amendment, Rafi Reznik

Brigham Young University Journal of Public Law

Contemporary Second Amendment law, which originated with the famous Heller decision (2008) and reached a new peak with Bruen (2022), relies on an implicit political theory. This article uncovers and critiques that theory. I argue that the Supreme Court’s Second Amendment jurisprudence positions interpersonal self-defense, and more generally individual response to crime, at the heart of the meaning of American citizenship. The paradigmatic citizen for whom state institutions should be designed is a self-defender, because, per the Court’s interpretive methodology, this is what the American people want. This line of cases thus attempts one of the most challenging feats of …

When It Happens Here: Reproductive Autonomy, Fascism, And Dobbs V. Jackson Women’S Health Organization, Robin Maril

Pace Law Review

Within six months after the U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, nineteen states passed laws prohibiting abortion within the first trimester. The most restrictive laws banned abortion entirely, except to save the life of the person giving birth. The Court’s eager abdication of its role in protecting individual liberty under the 14th amendment marks a grim chapter in the life cycle of American democracy. The Dobbs decision, along with the political environment that demanded the repeal of Roe v. Wade, promises to severely limit the role of women in public life. The specter …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Originalism After Dobbs, Bruen, And Kennedy: The Role Of History And Tradition, Randy E. Barnett, Lawrence B. Solum

Northwestern University Law Review

In three recent cases, the constitutional concepts of history and tradition have played important roles in the reasoning of the Supreme Court. Dobbs v. Jackson Women’s Health Organization relied on history and tradition to overrule Roe v. Wade. New York State Rifle & Pistol Ass’n v. Bruen articulated a history and tradition test for the validity of laws regulating the right to bear arms recognized by the Second Amendment. Kennedy v. Bremerton School District looked to history and tradition in formulating the test for the consistency of state action with the Establishment Clause.

These cases raise important questions about …

2023 Supreme Court Preview Digital Notebook, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

Anything But Prideful: Free Speech And Conversion Therapy Bans, State-Federal Action Plans, And Rooting Out Medical Fraud, Jordan Hutt

Fordham Law Review

At a time when conversion therapy might seem archaic to many people, this practice remains prevalent across the United States and finds legal support in the halls of federal courthouses. In 2020, the U.S. Court of Appeals for the Eleventh Circuit, in Otto v. City of Boca Raton, held that two ordinances banning conversion therapy in Boca Raton and Palm Beach violated First Amendment free speech rights. Specifically, Otto held that conversion therapy bans were content-based restrictions subject to strict scrutiny. Conversely, the U.S. Courts of Appeals for the Third and Ninth Circuits’ prior decisions upheld conversion therapy bans …

Twilight-Zone Originalism: The Peculiar Reasoning And Unfortunate Consequences Of New York State Pistol & Rifle Association V. Bruen, Albert W. Alschuler

William & Mary Bill of Rights Journal

This Article consists of two Parts and a conclusion. Part I focuses on the Bruen opinion and considers its contradictions, flaws, fallacies, and implications. Part II examines lower-court decisions applying Bruen during the first year after that decision. These decisions make Bruen’s flaws vivid.

This abstract has been taken from the author's introduction.

Originalism After Dobbs, Bruen, And Kennedy: The Role Of History And Tradition, Randy E. Barnett, Lawrence B. Solum

Faculty Scholarship

In three recent cases, the constitutional concepts of history and tradition have played important roles in the reasoning of the Supreme Court. Dobbs v. Jackson Women’s Health Organization relied on history and tradition to overrule Roe v. Wade. New York State Rifle & Pistol Ass’n v. Bruen articulated a history and tradition test for the validity of laws regulating the right to bear arms recognized by the Second Amendment. Kennedy v. Bremerton School District looked to history and tradition in formulating the test for the consistency of state action with the Establishment Clause.

These cases raise important questions about …

Flourishing, Virtue, And The Common Good Constitutionalism, Lawrence B. Solum

Faculty Scholarship

In Common Good Constitutionalism, Professor Adrian Vermeule articulates a conception of the common good. Vermeule has much to say about the common good, but very little to say about the substantive component of his conception, which he describes as “happiness or flourishing.” This Article articulates a conception of the common good that is grounded in a virtue-centered conception of human flourishing. Humans are rational and social creatures, and therefore, flourishing for humans consists in rational and social activities that express the human excellence or virtues. The common good requires communities that facilitate human flourishing in three ways: (1) by creating …

Retconning Heller: Five Takes On New York State Rifle & Pistol Association, Inc. V. Bruen, Brannon P. Denning, Glenn H. Reynolds

William & Mary Law Review

New York State Rifle & Pistol Association, Inc. v. Bruen was the first significant Second Amendment case that the Supreme Court had heard in nearly fifteen years since its decision in District of Columbia v. Heller. This Article offers some preliminary observations about the opinion itself, as well as its likely effects, some of which are starting to manifest.

Our first take concerns the question of opinion assignment. Why did Chief Justice Roberts—whose support for the Second Amendment has been suspect—assign the opinion to Justice Thomas?

Takes Two and Three concern Justice Thomas’s substitution of text, history, and tradition …

Revisiting The “Tradition Of Local Control” In Public Education, Carter Brace

Michigan Law Review

In Milliken v. Bradley, the Supreme Court declared “local control” the single most important tradition of public education. Milliken and other related cases developed this notion of a tradition, which has frustrated attempts to achieve equitable school funding and desegregation through federal courts. However, despite its significant impact on American education, most scholars have treated the “tradition of local control” as doctrinally insignificant. These scholars depict the tradition either as a policy preference with no formal legal meaning or as one principle among many that courts may use to determine equitable remedies. This Note argues that the Supreme Court …

Education And Democracy From Brown To Plyler, Nicholas Espíritu

St. John's Law Review

(Excerpt)

Judicial review has often been cast in terms of democratic legitimacy. Democratic legitimacy is often linked to whether it institutes the will of the people through majoritarian rule and whether it creates processes for reevaluation of these prior decisions by newly constituted majorities. Judicial review of majoritarian decisions has often been criticized as a overriding or circumventing of these democratic processes. Beginning with Brown v. Board of Education, the Warren Court adopted a resolution of the “counter-majoritarian difficulty” of judicial review by tacitly accepting Justice Stone’s formulation from footnote four of United States v. Carolene Products and engaging …

Opening Remarks, Shoba Sivaprasad Wadhia

St. John's Law Review

(Excerpt)

Thank you. I am honored to be here. And there is no more fitting way to honor Michael than around the 40th anniversary of Plyler v. Doe.

This case centered on Texas statute § 21.031, which on its face, permitted the local school districts to exclude noncitizen children who entered the United States without immigration status or to charge admission for the same. The questions before the Court were: (1) whether a noncitizen under the statute who is present in the state without legal status is a “person” and therefore in the jurisdiction of the state within the meaning …