Supreme Court

Protesting on the Supreme Court’s Front Porch

October 23, 2018

Some dressed as characters from The Handmaid’s Tale, the dystopian novel about a society in which women are valued only if their ovaries are viable. Others chanted “This isn’t over” while holding signs that said “WE DO NOT CONSENT” and “UNFIT TO SERVE.” That was the scene that greeted Justice Brett Kavanaugh when he arrived…

The Next Threat to Redistricting Reform

October 22, 2018

These are perilous times even for those who think that federal courts have no business messing with how state legislatures draw lines for legislative and congressional districts and that the issue is best left up to each state’s political system. Now that Justice Anthony Kennedy has left the stage, it is unlikely that the Court…

A Shadow Across Our Democracy

July 24, 2018

The fate of our democracy may very well hang on the vote of Justice Kennedy’s replacement. If a newly constituted Supreme Court were to overrule (or limit to a vanishing point) Roe v. Wade, it would only matter if state legislatures restricted abortion rights. Undocumented men and women brought to this country as children and…

Not Conservative

July 3, 2018

The press and the rest of the commentariat have fallen into the habit of referring to the work of Chief Justice Roberts and Justices Thomas, Alito, and Gorsuch as “conservative.” That is wrong. In several of the most controverted areas that the Court has entered and in which its decisions have had a profound effect…

The New Military Federalism

June 29, 2018

Although it was not exactly a headline-grabbing ruling, the Supreme Court’s decision last Friday in Ortiz v. United States will likely receive a fair amount of academic attention, especially from Federal Courts casebooks, thanks to its long-overdue analysis of the types of disputes (and nature of the tribunals) over which the Court may exercise direct…

Don’t Forget Congress When Assigning Blame: Thoughts on Trump v. Hawaii

June 27, 2018

In the aftermath of the Supreme Court’s decision in Trump v. Hawaii, the travel ban or Muslim ban case, it is unfortunately necessary to engage—or continue to engage—in the process of assigning blame. Starting during the presidential campaign and continuing into his presidency, Donald Trump gave much reason to fear that he had “animus,” to…

The Travel Ban Arguments and the President’s Words

April 27, 2018

Coming out of Wednesday’s arguments in Trump v. Hawaii, the dominant view—see, for example, here, here, and here—was that the federal government was likely to prevail and the Proclamation would be upheld. I was less sure; my impression was that if the Court reached the Establishment Clause question—a big if—there was a good chance that…

Into the Redistricting Woods

February 13, 2018

This post is the first in a series about the redistricting cases moving through the courts. In the Spring of 2013, two prominent election lawyers, a Republican and a Democrat, visited my Election Law class. I asked them what were the great unsettled questions in the field, especially governing redistricting. They were united in their…

The Meaning of Marriage

December 1, 2017

Laws banning discrimination on the basis of sexual orientation — like laws banning discrimination on the grounds of race, sex, and other significant statuses — are a moral and social good, properly expressing the intrinsic and radical equality of every human person. Marriage, however, by law and by custom, is not a statement about an…

Déjà Vu “No Cake for You”

Next week’s oral argument in Masterpiece Cakeshop involves a familiar story: Three customers walk into a small business that sells specialty foods. The owner is said to be an “artist” for his unique culinary skills and believes his religious convictions imbue his work. The owner turns the customers away entirely or denies them access to…

Digital Realty Trust v. Somers: Hasn't Chevron Deference Gone Too Far?

October 17, 2017

In the high-flying corporate world, employees from time to time suspect that a colleague or boss may be violating federal securities laws. But they may shy away from reporting these violations — from “blowing the whistle” — either to the employer or relevant authorities, because of a risk of retaliation. When Congress passed the Dodd-Frank…