Muñoz on History and Tradition in the Trump Justices' Church-State Jurisprudence

Vincent Phillip Muñoz, University of Notre Dame, Department of Political Science, has published History and Tradition in the Trump Justices’ Church-State Jurisprudence. Here is the abstract.

This article analyzes conservative Supreme Court justices' recent use of history and tradition in First Amendment religious liberty cases. It argues that these justices have failed to articulate a persuasive rationale as to why exactly the Establishment Clause must be interpreted by reference to historical practices and understandings and that they have failed to adequately show that history supports their "no-coercion" construction of what constitutes a prohibited establishment. Concerning the Free Exercise Clause, the court's conservatives have dismissed history by disregarding historical practices that do not conform to their approach to the text. The court's use, misuse, and nonuse of history cannot help but give the impression that policy preferences-more than history or the actual original understanding of the First Amendment-have determined recent church-state decisions.

Download the article from SSRN at the link.

Joshi on Judicial Regrets

Yuvraj Joshi, Brooklyn Law School; UCLA Promise Institute of Human Rights; UC Berkeley Miller Institute for Global Challenges and the Law, is publishing Judicial Regrets in volume 99 of the Southern California Law Review (2026). Here is the abstract.

U.S. Supreme Court Justices have often expressed regret about their most consequential rulings and opinions. Chief Justice Earl Warren lamented his 1955 Brown v. Board of Education opinion ordering desegregation “with all deliberate speed”—ambiguous phrasing that ultimately enabled delays in integration. Justice Lewis Powell recanted his 1986 opinion in Bowers v. Hardwick, which upheld a Georgia law criminalizing same-sex intimacy. In Grutter v. Bollinger, Justice Sandra Day O’Connor predicted that affirmative action policies would no longer be needed twenty-five years later—a prediction she later acknowledged was mistaken. These examples, among others discussed in this Article, illustrate that judicial regrets are frequent and poignant, spanning several areas of law. Despite their significance, judicial regrets remain largely unexplored in American legal scholarship. This Article addresses this phenomenon by drawing on multidisciplinary research on regret, previously unpublished judicial survey data, and judicial case studies. It examines how the law might better account for judicial regret and underscores insights about law and judging that stem from deeper understandings of it. Because judicial regret can catalyze legal reforms, rectify past harms, and influence legal interpretations, this Article proposes ways to incorporate it into constitutional interpretation and the treatment of precedent. By contemplating the legal and normative significance of this neglected judicial emotion, this Article aims to help the legal community avoid collectively discounting regret.

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Barrett on Felix Frankfurter, Collector of People @JohnQBarrett @StJohnsLaw @TouroLawReview

John Q. Barrett, St. John's University School of Law; Robert H. Jackson Center, is publishing Felix Frankfurter, Collector of People in volume 39 of the Touro Law Review (2024). Here is the abstract.

This essay is part of the Touro Law Review symposium issue, “The Life, Work & Legacy of Felix Frankfurter.” It grew out of Touro Law School’s April 19, 2023, Frankfurter conference, which was inspired by Brad Snyder’s publication of the biography Democratic Justice: Felix Frankfurter, the Supreme Court, and the Making of the Liberal Establishment. This essay describes how Felix Frankfurter engaged, intensely, with people—they were the treasures that he hunted down, evaluated, and collected. It considers some of Frankfurter’s most treasured people. One group is people who made Frankfurter, including Henry L. Stimson, and Franklin D. Roosevelt. Another group is Justice Frankfurter’s three great U.S. Supreme Court colleagues: Justices Hugo L. Black, Robert H. Jackson, and William O. Douglas. A third group is biographers who Frankfurter admired and pushed: Harlan Buddington Phillips, Mark DeWolfe Howe, Jr., McGeorge Bundy, Alexander M. Bickel, Andrew L. Kaufman, and Philip B. Kurland. Biographer Brad Snyder has, by himself collecting Frankfurter and portraying him so fully and so well, brought his people-collecting into focus. I hope that Snyder’s biography stimulates others to study Frankfurter, to recover his stolen papers, to write more about him, to publish more of his writings, and to live people-filled lives. The Touro Law Review Frankfurter symposium issue includes, in addition to my essay, this superb content: an introduction by Rodger Citron, conference organizer; a keynote address by Frankfurter biographer Brad Snyder; and essays and articles by Judge Jed S. Rakoff, R.B. Bernstein, William E. Nelson, Helen J. Knowles-Gardner, and Dalia Tsuk.

Download the essay from SSRN at the link.

Davies on Square Dancing and a Cat at the Supreme Court @horacefuller @georgemasonlaw

Ross E. Davies, George Mason University School of Law, has published Square Dancing and a Cat at the Supreme Court: Justice Harry A. Blackmun’s First Moment in Charge at 11 Journal of Law 1 (2023). Here is the abstract.

Associate Justice Harry A. Blackmun served on the Supreme Court of the United States from June 1970 to August 1994. He had mixed feelings about the Chief Justices with whom he served. How might a Blackmun Chief Justiceship have been different?

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Brown on Laughing All the Way to the Bench: The Role of Humor in Supreme Court Confirmation Hearings @ColumbiaLaw @columbiajla

Joanna Brown, Columbia Law School, is publishing Laughing All the Way to the Bench: The Role of Humor in Supreme Court Confirmation Hearings in the Columbia Journal of Law & the Arts. Here is the abstract.

Supreme Court confirmation hearings serve a unique role in our government: they are the only instances where future Justices and their judicial philosophies are televised and subject to the scrutiny of not only the Senate, but also the public. Especially as judicial nominations become increasingly politicized and polarized, appearing trustworthy, likeable, and sensible becomes essential to nominees’ candidacy. Humor thus arms judges with the ability to volunteer positive information, appear humble, showcase values, lighten difficult topics and otherwise bond with Senators. Perhaps more saliently, it enables them to dodge, correct, or mock contentious or unflattering lines of questioning. By studying when, why, and how nominees use humor, we can get a glimpse into their future jurisprudence and decisions on the Bench: avoiding a topic or making light of a question may seem harmless in the hearing, but can actually reveal a nominee’s position on an issue and serve an important truth-telling role.

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Tobia on Whether We're All Texualists Now @kevin_tobia @NYUasal

Kevin Tobia, Georgetown University Law Center; Department of Philosophy, is publishing We're Not All Textualists Now in the NYU Annual Survey of American Law (2023). Here is the abstract.

“We’re all textualists now,” announced Justice Kagan in 2015. In 2022, she rescinded the claim: “It seems I was wrong.” We’re not all textualists. This Article explores the meaning and impact of these two statements. It argues that the first statement was not mere hyperbole; it expressed that there is a significant sense in which modern American legal interpretive culture is textualist. The shared commitment is not a strict textualism, but a thin one; we all start with the text. The 2022 statement alleges that some “textualists” have begun to flout even the thin shared commitment to text. There is substantial uncertainty about whether our judicial interpretive culture will continue to be textualist.

Download the essay from SSRN at the link.

Barrett on Law Clerk John Costelloe's Photographs of the Stone Court Justices, October 1943 @johnqbarrett @StJohnsLaw

John Q. Barrett, St. John's University School of Law, Robert H. Jackson Center, has published Law Clerk John Costelloe's Photographs of the Stone Court Justices, October 1943, at 46 Journal of Supreme Court History 162 (2021). Here is the abstract.

When U.S. Attorney General Robert H. Jackson was appointed to the U.S. Supreme Court in Summer 1941, he brought a young Department of Justice lawyer, John F. Costelloe, with him to be his law clerk. John Costelloe was an excellent law clerk. He worked with Justice Jackson at the Court for more than two years, including on Jackson’s now-canonical opinions for the Court in Wickard v. Filburn (1942) and West Virginia State Board of Education v. Barnette (1943). John Costelloe also was a talented photographer. In October 1943, as Costelloe was completing his clerkship, he got each Supreme Court Justice to pose for his camera. Costelloe later developed and printed close, candid portrait photographs of the Justices: Chief Justice Harlan Fiske Stone and Associate Justices Owen J. Roberts, Hugo L. Black, Stanley Reed, Felix Frankfurter, William O. Douglas, Frank Murphy, Robert H. Jackson, and Wiley Rutledge. John F. Costelloe’s portrait photographs of the Justices are published here for the first time, in an article on Costelloe, Jackson, their close relationship, and the history of the photographs.

The full text is not available for download from SSRN.

Warden on Disenchanting Justice Holmes @LSULawCenter @TulaneLaw @UIllLRev

Derek Warden, Law Clerk, Louisiana Supreme Court, is publishing Disenchanting Justice Holmes, in volume 2021 of the University of Illinois Law Review. Here is the abstract.

Over the last several years, the United States has seen the “cancellation” of numerous public figures. While the concept of “cancel culture” is of great concern to society, bringing recognition to the failures of public figures and powerful people is important. Truth should always be spoken to power. However, it is disheartening when those who have committed and encouraged some of the most heinous actions are continuously venerated by powerful institutions. The purpose of this letter is to encourage the discontinuation of such veneration for one jurist, Justice Holmes. I do not mean to “cancel” Justice Holmes in the modern sense, but to disenchant him. By this I mean to pull back the curtain, expose the wizard for the man he is; and, based on one opinion, show that such continued infatuation with Justice Holmes is improper. Of course, Justice Holmes is not the only Justice who has failed society. We have seen the Supreme Court fail on numerous occasions. Many of the Court’s worst decisions are deemed to have been wrong the day they were decided. This so-called “anticanon” represents America at its worst. We know these cases by the names of the litigants: Dred Scott, Plessy, Korematsu, and Lochner. Conspicuously absent from that typical pantheon of error is perhaps the worst of all, second only to Dred Scott—Buck v. Bell. Buck is the case which prompts this essay.

Download the essay from SSRN at the link.

ICYMI: Barrett on A New CJ in the Sight of His Predecessor: Stone and Hughes, Summer 1941 @JohnQBarrett @StJohnsLaw

ICYMI: John Q. Barrett, St. John's University School of Law; Robert H. Jackson Center, has published A New Chief Justice in the Sight of His Predecessor: Stone and Hughes, Summer 1941 at 42 Journal of Supreme Court History 202 (2017). Here is the abstract.

Most Chief Justices of the United States have died in office. And few served initially as an Associate Justice. Thus after the founding period, only two Chiefs—Charles Evans Hughes and Warren E. Burger—ever saw an Associate Justice colleague be appointed to succeed him as Chief Justice. This article chronicles that history. It also describes the rare instance in Summer 1941 of such a succession, and the telegrams and letters that Chief Justice Hughes and his colleague Associate Justice Harlan Fiske Stone exchanged as Hughes retired and Stone was appointed to be his successor.

Download the article from SSRN at the link. 

Whisner On When Douglas Hired a Woman To Clerk @marywhisner

Mary Whisner, University of Washington School of Law, has published Douglas Hires a Woman to Clerk 2020 Green Bag Almanac and Reader 297–310 (2020) at 2020 Green Bag Almanac and Reader 297 (2020). Here is the abstract.

The editors of the 2020 Green Bag Almanac and Reader mined Justices' papers held by the Library of Congress for handwritten documents to feature and invited essays about each one. This essay is a gloss on Vern Countryman's letter to Justice William O. Douglas (Jan. 12, 1944) recommending a law student from the University of Washington to serve as a clerk. The law student was Lucile Lomen, who became the first woman to clerk for a Supreme Court Justice. The essay offers biographical tidbits and historical context—including Lomen's childhood in Nome and Seattle life during World War II. Along with shipbuilding and troop movements, the Seattle experience included the internment of Japanese Americans (Gordon Hirabayashi was a student at the UW at the same time Countryman and Lomen were there), an issue that went East to the Supreme Court, as the young clerks did. As a Seattleite whose parents were born the same year as Lomen, I also weave in some personal history.

Download the essay from SSRN at the link.

Kathleen Kim and Yxta Maya Murray, Advice & Consent: A Play in One Act (2019) @murrayyxta

Kathleen Kim, and Yxta Maya Murray, both of the Loyola (Los Angeles) Law School, have published Advice & Consent: A Play in One Act as Loyola Law School, Los Angeles Legal Studies Research Paper No. 2020-19. Here is the abstract.

On September 27, 2018, the Senate Judiciary Committee held hearings concerning Dr. Christine Blasey Ford’s allegations that then-Supreme Court Justice nominee Judge Brett Kavanaugh had sexually assaulted her in the mid-1980s. Advice and Consent is a play by award-winning writer and law professor Yxta Maya Murray, formed of interviews, found text, and transcripts, re-arranged, selected, and edited for poetic and provocative effect. Law professor Kathleen Kim authored the Introduction and composed the play's Musical Score. The drama is designed as a thought experiment about power, pathos, tragedy, politics, gender, race, and truth. Professors Murray and Kim have presented and performed Advice and Consent in various academic and art forums.

Download the play from SSRN at the link.

Post on How Taft Constructed the Epochal Opinion of Myers v. United States

Robert Post, Yale Law School, is publishing Tension in the Unitary Executive: How Taft Constructed the Epochal Opinion of Myers v. United States in the Journal of Supreme Court History (2020). Here is the abstract.

This article is excerpted from the forthcoming Volume X of the Oliver Wendell Holmes Devise History of the Supreme Court of the United States, which covers the period 1921-1930 when William Howard Taft was Chief Justice. The article will be published in an upcoming issue of the Journal of Supreme Court History. The article offers for the first time a detailed account of the process by which William Howard Taft authored his pathbreaking opinion in Myers v. United States, the first Supreme Court decision ever to hold a statute of Congress unconstitutional because incompatible with Article II prerogatives of the President. The decision was six to three, featuring strong dissents by Brandeis, McReynolds, and Holmes. Using archival sources, the article discusses competing views within Taft’s majority coalition of six, as well as Taft’s own independent views about the question of the presidential power of removal. Analyzing the reasoning of Myers in detail, the article argues that the decision is neither an example of originalism, as Justice Antonin Scalia has claimed, nor is it compatible with contemporary understandings of the “unitary” executive.

Download the article from SSRN at the link.

West and Lithwick on The Paradox of Justice John Paul Stevens @sonjarwest @Dahlialithwick

Sonja West, University of Georgia School of Law, and Dahlia Lithwick are publishing The Paradox of Justice John Paul Stevens in volume 114 of the Northwestern University Law Review (2020). Here is the abstract.

In the days following Justice John Paul Stevens’s death last year, numerous tributes and remembrances immediately poured forth. Former clerks, journalists, and legal scholars all grasped for the perfect words to capture the man and the justice we had just lost. Yet many readers of these tributes and homages might have begun to wonder whether they were actually all talking about the same person. Because, taken together, the various portraits appeared to be full of contradictions. In one piece, for example, Justice Stevens is described as a frequent lone dissenter, while in another he is praised for his consensusbuilding leadership. For every tribute depicting him as a moderate around whom the Court shifted rightward, there seemed to be another painting him as a jurist who drifted leftward. He was a Republican yet also a liberal giant. He was deeply patriotic, while also a sharp critic of governmental institutions. So who was the real Justice Stevens? How can we possibly be expected to understand his legacy if we can’t even agree on the basic characteristics he embodied? Which of these portraits is correct? The answer is that they all are. If Justice Stevens were a multiple-choice test, the right answer to pretty much every question would likely be “all of the above.” He was, in so many ways and at so many times, both a thing and also the opposite of that thing. And the secret to understanding Justice Stevens’s legacy is to appreciate how his seemingly paradoxical nature was, in fact, his greatest strength.

Download the article from SSRN at the link.

Donelson on Oliver Wendell Holmes as Nihilist @LSULawCenter

Raff Donelson, Louisiana State University, has published The Nihilist at The Pragmatism and Prejudice of Oliver Wendell Holmes, Jr. 31-48 (Seth Vannatta, ed. Lexington Press 2019). Here is the abstract.

Scattered skeptical remarks and a general austerity that infused his writings have given Justice Oliver Wendell Holmes a reputation as some type of nihilist. Noted commentators such as Richard Posner and Albert Alschuler have claimed as much. This article seeks to correct this misunderstanding. Holmes was not a nihilist in the sense of being melancholy due to a belief that the world has no absolute moral values or gods. Instead, Holmes was a pragmatist in the spirit of William James and John Dewey. While Holmes had doubts about moral truth and deities, he ultimately thought that their existence (or non-existence) should have no bearing on our behavior or the law. We must, through our collective efforts, find values that work for us.

Download the essay from SSRN at the link.

The Notorious RBG In Song @ConstitutionCtr

The National Constitution Center hosted Notorious RBG in Song last night. Here's a link to the website, where you can hear the performance, which features Patrice Michaels, Kuang-Hao Huang, Andrew Harley, members of the Inscape Chamber Orchester, and Capital Hearings. 

Weisberg on Cardozo's "Law and Literature": A Guide To His Judicial Writing Style

Richard Weisberg, Cardozo School of Law, has published Cardozo's 'Law and Literature': A Guide to His Judicial Writing Style at 34 Touro Law Rev. 349 (2018). Here is the abstract.

Weisberg traces Judge Cardozo's advice about legal writing to the famous 1925 essay LAW AND LITERATURE and applies it to the judicial opinions and other published works of Cardozo and various other judges.

Download the essay from SSRN at the link.

Bamzai on Taft, Frankfurter, and the First Presidential For-Cause Removal @adityabamzai

Aditya Bamzai, University of Virginia School of Law, has published Taft, Frankfurter, and the First Presidential For-Cause Removal at 52 University of Richmond law Review 691 (2018).

In the fall of 1912—while one of the most consequential presidential campaigns in United States history raged around them—William Howard Taft, Felix Frankfurter, and a handful of officials within the federal government initiated a process to remove two members of the Board of General Appraisers for inefficiency, neglect of duty, and malfeasance in office. The process culminated in President Taft’s for-cause dismissal of the two members, Thaddeus Sharretts and Roy Chamberlain, on the very last day that he served as President, after he received a report recommending their firing from a “committee of inquiry” that included Frankfurter. Taft’s firing of Sharretts and Chamberlain was the first presidential for-cause removal. To this day, it remains the only time in the history of the nation that the President has expressly removed for cause an executive branch “officer of the United States” whose tenure is protected by statute after providing notice to the officer, holding a hearing, and finding that the statutory predicates for removal have been met. Taft’s action involved decisions by two individuals—Taft himself and Frankfurter—who would go on to become Justices of the United States Supreme Court and to author two of the most consequential opinions on the President's authority to remove subordinates, Myers v. United States and Wiener v. United States. It involved the construction and application of statutory language—“inefficiency, neglect of duty, or malfeasance in office”—that Congress still uses to mark some kind of “independence” from presidential control on behalf of an administrative agency. Echoes of the issues that Taft and Frankfurter confronted in 1913 may be heard in Myers and Wiener, in Justice Sutherland’s opinion for the Court in Humphrey’s Executor v. United States, and in recent controversies over the scope of the President’s power to remove subordinate officers within the executive branch. Despite all of the foregoing, the episode has escaped scholarly attention and been the subject of no relevant legal discussion. No account of President Taft’s removal of the two Board members appears in the various treatments of the President’s removal power, or in the large literatures devoted to Taft and Frankfurter, two towering figures in American legal history. Indeed, it is widely, but mistakenly, assumed that no President has ever removed an officer for cause and that (in the words of the dissenting opinion in Free Enterprise Fund v. Public Co. Accounting Oversight Board) “it appears that no President has ever actually sought to exercise [the removal] power by testing the scope of a ‘for cause’ provision.” As a corrective, this article tells the story of Taft’s for-cause removal of the two general appraisers on his last day in office, following a process started in the midst of his 1912 reelection battle with future President Woodrow Wilson and former President Theodore Roosevelt. It then explores the episode’s implications for present-day understandings of the development of the American administrative state and the doctrine of the separation of powers.

Download the article from SSRN at the link.

West on Justice Stevens, the Writer @sonjawest

Sonja West, University of Georgia School of Law, has published Justice Stevens, the Writer at 94 Wash. U. L. Rev. 1417 (2017). Here is the abstract.

In any discussion about United States Supreme Court Justice John Paul Stevens, you're likely to hear him labeled in a variety of ways--as a brilliant “judge's judge,” the highly successful leader of the Court's more liberal wing, the prolific “maverick,” and a shrewd questioner from the bench. You might also hear him described simply as a polite and humble Midwesterner, bow-tie aficionado and diehard Cubs fan. Yet while Justice Stevens is and was all of these things, there is another important title he richly deserves yet often does not receive--Justice Stevens, the excellent writer. This essay strives to close that gap and celebrate the unsung writing talents of Justice Stevens. This is by no means meant to be a serious linguistic study of his writings, nor is it an exhaustive overview. My goal, rather, is simply to highlight his skills as a wordsmith with some of the most memorable examples. What follows is a collection of snippets of Justice Stevens's writing drawn from my own reservoir of personal favorites and an informal survey of other former Stevens clerks.

Download the article from SSRN at the link.

Fitzpatrick and Varghese on Scalia in the Casebooks @VanderbiltU

Brian T. Fitzpatrick, Vanderbilt Law School, and Paulson Varghese, Vanderbilt Law School (Students), are publishing Scalia in the Casebooks in volume 84 of the University of Chicago law Review. Here is the abstract.

In the time since Justice Antonin Scalia’s untimely death, much has been written about what his influence has been and what his influence will be. In this Essay, we try to quantify Scalia’s influence in law school constitutional-law curricula by studying how often his ideas are explored in constitutional-law casebooks. In particular, relative to other justices, we look at how often Scalia’s opinions (for the Court, or his separate opinions) are excerpted in the principal cases and how often he is referred to by name in the notes preceding and following the principal cases. We find that Scalia is at or near the top of most of the metrics we explore here, but he does not tower over the competition. Indeed, the data reveal that perhaps the most important factor driving inclusion in our casebooks is seniority: chief justices and justices who led their ideological wings of the Court have a great deal of power to assign themselves opinions that are likely to end up in our casebooks. We find that the most notable exception in the data is not Scalia, but Justice Samuel Alito: he is included in our casebooks to an especially surprising extent given that, until this year, he has always been the most junior member of his wing of the Court.

Download the article from SSRN at the link.

Mendenhall on Jeffrey Rosen's Depiction of Louis Brandeis as the Jeffersonian Jurist @allenmendenhall

Allen Mendenhall, Faulkner University School of Law, is publishing The Jeffersonian Jurist? a Reconsideration of Justice Louis Brandeis and the Libertarian Legal Tradition in the United States in volume 9 of the Elon Law Review (2017). Here is the abstract.

This article explores Jeffrey Rosen’s depiction of Justice Brandeis as a “Jeffersonian prophet,” “the leader of a Jeffersonian tradition,” and “the Jewish Jefferson” to examine the meaning of the term “libertarian” in the context of American constitutional jurisprudence. It argues that Rosen unsettles the characterization of Brandeis as non-libertarian or anti-libertarian and, consequently, destabilizes the very meaning of “libertarianism” as that term is used by self-described libertarians in current scholarship about American constitutionalism. Whether Brandeis was a pure or true libertarian does not concern me. What interests me is the way in which scholars have invoked Brandeis to delimit the nature of libertarian jurisprudence in the American constitutional context. Brandeis simultaneously illuminates and problematizes the designation “libertarian.” His formative influence on American constitutional law elicits dogged attempts to categorize or classify him. He continues to attract admirers and provoke antagonists, both of whom express firm opinions about his association with libertarianism. At stake in the debate over Brandeis’s association with libertarianism is the meaning and import of “libertarian” jurisprudence in our constitutional tradition. Disturbing any consensus regarding the term “libertarian” in the context of American constitutional jurisprudence is significant because it necessitates two questions: what, exactly, is “libertarian” jurisprudence, and who decides? Answers to these questions may disrupt the momentum that self-identified libertarian legal scholars have enjoyed over the last decade and underscore claims to libertarianism that are at odds with that consensus.

Download the article from SSRN at the link.