Chauvin on Understanding Free Speech Values at the Supreme Court

Noah Chauvin, University of Oklahoma College of Law, is publishing Understanding Free Speech Values at the Supreme Court in volume 78 of Rutgers Univ. L. Rev. Commentaries (forthcoming 2025). Here is the abstract.

This essay is a book review of The Supreme Court and the Philosopher: How John Stuart Mill Shaped US Free Speech Protections, by Professors Eric Kasper and Troy Kozma. The book argues that John Stuart Mill had an indelible impact on the Supreme Court's free speech jurisprudence, and that through the power of precedent, we have come to have a "Millian" First Amendment. As I explain in the review, Kasper and Kozma have made a compelling case. However, because Mill offered an expansive defense of freedom of expression, it is not enough to say that the Court's free speech jurisprudence is "Millian," because that could mean many different things. Understanding with greater precision what motivates the justices in free speech cases is crucial for attorneys, advocates, and scholars.

Download the review from SSRN at the link.

Tushnet on History and Tradition in First Amendment Intellectual Property Cases: A Critique

Rebecca Tushnet, Harvard Law School, is publishing History and Tradition in First Amendment Intellectual Property Cases: A Critique in the Marquette Intellectual Property Law Review. Here is the abstract.

There are indications that the "history and tradition" approach the Supreme Court applied to gun rights and abortion restrictions may be coming for First Amendment doctrine. In intellectual property cases, it already has, with the Court using historical analogies for the right of publicity, copyright, and trademark. Unlike in the Second Amendment context, where the Court has reasoned from things earlier regulators didn’t do to strike down gun regulations today, in “history and tradition” First Amendment law the Court has reasoned by broad analogy to allow new speech restrictions. One lesson is that the history and tradition approach does not meaningfully constrain Justices even in low-political-salience areas like copyright and trademark, outside highly politicized contexts. The manipulability of levels of generality in making historical analogies has been justly criticized, but the IP cases provide a particularly clear contrast in outcomes from those in the Second Amendment cases, despite putatively using the same method of looking to historical models before—and even in place of—applying a means-ends test or other non-analogic scrutiny.

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.

Download the article from SSRN at the link.

Kerr on Reckless Speech in the Shadow of the Constitution @PKUSTL @SHULawReview

Andrew Jensen Kerr, Peking University School of Transnational Law, is publishing Reckless Speech in the Shadow of the Constitution in volume 55 of the Seton Hall Law Review. Here is the abstract.

In this Article, I explore the question of whether and to what extent a seeming threat may be justified by its potential social utility. This past summer, in Counterman v. Colorado, the U.S. Supreme Court held for the first time that the First Amendment requires a threats statute to include at minimum a “recklessness” mental state. This clarification was long overdue. However, Justice Kagan’s majority opinion ignored an important sense of how and why people express themselves, so as to make art. In concurrence, Justice Sotomayor observes how rap (in constitutional terms, “art speech”) can be misinterpreted when a speaker does not share the same cultural background as her audience. I connect this art speech dilemma to an undertheorized aspect of criminal law: how to interpret the normative component of our recklessness mens rea test that evaluates whether an actor took an unjustified risk of causing harm. Missing from Counterman, and the broader literature, is an analysis of whether making provocative art, or attempting to make provocative art, is at all justified by the constitutional status of the speech act and how it may further the underlying value system of the First Amendment. The rub for the First Amendment is that one of its basic purposes is to protect speech that we don’t like very much. This creates a very complicated analysis for the juror who is tasked with resolving whether, in my terms, a superficial threat is not-so-unjustified so that the speaker does not merit punishment. Delegating this kind of loaded question to a lay juror invites legal process concerns, like those framed by constitutional fact doctrine. But, in the end, I suggest that these academic concerns may have negligible consequence. Jurors can still rely on their folk sense of criminal responsibility when making culpability evaluations in the shadow of the Constitution, where speech crimes like true threats reside.

Download the article from SSRN at the link.

Thumma and Miller on The Slump: Infamous United States Supreme Court Decisions From the Gilded Age, Explanations About What Happened, and Why It Matters Now

Samuel Thumma, Arizona Court of Appeals, and Michael O. Miller, independent scholar, are publishing The Slump: Infamous United States Supreme Court Decisions From the Gilded Age, Explanations About What Happened, and Why It Matters Now in the Journal of Gender, Race, and Justice. Here is the abstract.

In its history, the United States Supreme Court has issued many decisions forgotten to time. A few are touted as brilliant and foundational, and others are widely criticized. An outsized number of infamous decisions came during the last three decades of the 19th Century, during what we call The Slump.

The latter third of the 19th Century -- often called the “Gilded Age” -- was a time of extraordinary advancements in the United States, including rapid growth and technical development, prosperity for many, significant immigration, and the transition from an agrarian to a manufacturing economy. In the Supreme Court, however, this same period presented a far different cluster of challenges: the meaning and application of the Civil War Amendments (13th, 14th and 15th); reinterpreting or abandoning precedent based on laws protecting “African slavery;” confronting entrenchment of quasi-slavery in the South; and the application of (or refusal to apply) the Reconstruction Amendments to society as a whole. The Court’s decisions were shockingly deficient in doing so. This article focuses on ten infamous cases (“The Slump Cases”) from the Gilded Age -- starting with The Slaughter-House Cases in 1873 and ending just after Plessy v. Ferguson in 1896 -- as well as the Justices’ extra-judicial involvement in deciding the 1876 Presidential Election.

Each Slump Case is discussed in historical and legal context, then critiqued based on the consequences of its failures. We also examine the implications arising from the role of the Justices in resolving the 1876 Presidential Election, decided in an unprecedented manner by just one electoral vote. The article then discusses possible explanations for these infamous cases, ultimately settling on a unified explanation: the Supreme Court failed to address the constitutional revolution wrought by the Civil War and failed to recognize individual rights consistent with those profound changes. It did so in cases involving race, gender, national origin, citizenship, marital relationships, travel, free speech, voting, and jury service. It did so in ways that ignored facts, negated remedial legislation, and could not be fixed legislatively but, instead, resulted in the creation of ill-defined constitutional doctrines, such as substantive due process.

Several Slump Cases were later reversed, but it took many decades and misstarts to do so. Equally important today, the analytical and other failures in The Slump Cases surrounding the Reconstruction Amendments percolate into current jurisprudence, including voting disputes and partisan conflict. Our examination of constitutional changes within this group of Supreme Court decisions during this 30-year period will provide a broader context for considering their significance, precedential value and, hopefully, lessons learned in future cases before any court.

Download the article from SSRN at the link.

Now Available: Peter Charles Hoffer: The Supreme Court Footnote: A Surprising History (NYU Press, 2024) @NYUpress

Now available: Peter Charles Hoffer, The Supreme Court Footnote: A Surprising History (NYU Press, 2024). Here from the publisher's website is a description of the book's contents.

In May 2022, a seismic legal event occurred as the draft majority opinion in Dobbs v. Jackson Women’s Health was leaked. The majority aimed to eliminate constitutional protection for abortion. Amidst the fervor, an unnoticed detail emerged: over 140 footnotes accompanied the majority opinion and dissent. These unassuming annotations held immense significance, unveiling justices’ beliefs about the Constitution’s essence, highlighting their controversial reasoning, and laying bare the vastly different interpretations of the role of Supreme Court Justice. The Supreme Court Footnote offers a study of the evolution of footnotes in US Supreme Court opinions and how they add to our constitutional understanding. Through a comprehensive analysis, Peter Charles Hoffer argues that as justices alter the course of history via their decisions, they import their own understandings of it through the footnotes. The book showcases how the role of the footnote within Supreme Court opinions has evolved, beginning with one of the first cases in the history of the court, Chisholm v. Georgia in 1792 (a case concerning federalism vs. states’ rights) and ending with the landmark Dobbs v. Jackson case in 2022. Along the way, Hoffer demonstrates how the footnotes within these decisions reflect the changing role of the Supreme Court Justice, along with how interpretations of the constitution have transformed over time. At once surprising and revealing, The Supreme Court Footnote proves that what appears below the line is not only a unique window into the history of constitutional law but also a source of insight as to how the court will act going forward.

Miller on Perfecting Our Submission? Mann and Trump, Ruffin and Roberts @UGASchoolofLaw

Joseph Scott Miller, University of Georgia School of Law, has published Perfecting Our Submission? Mann and Trump, Ruffin and Roberts as University of Georgia School of Law Legal Studies Research Paper No. 2024-5. Here is the abstract.

Presidential power is vast, both under law and in practice. Who holds presidents accountable, and by what means? Much turns on the answers we provide, as well as on the justifications we establish for those answers. The majority opinion in the new presidential immunity case, Trump v. U.S., is eerily resonant, rhetorically, with a notorious judgment enhancing one person’s power over others by shielding that power utterly from criminal-law accountability. That judgment, now nearly two centuries old, is Judge Thomas Ruffin’s infamous slavery-law opinion for the North Carolina Supreme Court in State v. Mann. I juxtapose the two opinions, which share jarringly similar claims about the nature of power, rule, and accountability under law.

Download the article from SSRN at the link.

Charles on Time and Tradition in Second Amendment Law @JacobDCharles @PeppLaw @FordhamULJ

Jacob D. Charles, Pepperdine University School of Law, has published Time and Tradition in Second Amendment Law at 51 Fordham Urban Law Journal 259 (2023). Here is the abstract.

The Supreme Court’s Second Amendment is a chronological chameleon. For one purpose, its meaning is fixed in the firmament of the Founding era. For another purpose, its language is anchored to the understanding of living Americans. One clause gets projected backwards, traced to antecedents in the 17th century. An adjacent clause gets projected forward, evolving alongside dynamic consumer preferences. Still other words or phrases are cloaked in meaning from different temporal epochs — the Long 18th Century, the Antebellum South, the Reconstruction Era, and even the Reagan Revolution. This oscillation remains unexplained in the Justices’ opinions. Why so many incompatible timelines? Only Χρόνος knows. In New York State Rifle & Pistol Association v. Bruen, the Supreme Court announced a new past-bound Second Amendment test. There, the Court said that no gun regulation can be upheld unless it has an analogue in the distant past — unless, that is, “the government can demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation.” That historical test masks the ways that the Supreme Court’s own pronouncements refer different questions to different time periods. Lower court judges have drawn attention to how the Court’s new guidance creates a “logical inconsistency” in the time that matters and fuels “anachronism” in the Court’s doctrine. They have recognized, that is, that time takes on supreme importance, but that the relevant temporal frame is not uniform across the questions pervading Second Amendment law. Neither the Court nor commentators give any reason to refer some questions to the Founding generation and others to Gen X. This brief Essay explores the inconsistency in the current doctrine. Part I charts the different questions that the Supreme Court has divided up among different temporal epochs. Part II begins to think through how the Court could redirect or justify its practice, either by referring all questions to the same time period or explaining why the existing diversity makes sense. Whatever the pathway, the Court should justify its doctrinal treatment of time.

Download the essay from SSRN at the link.

Call For Papers: Washington University Law Review Symposium on the 150th Anniversity of Minor v. Happersett @WashULRev

From Hannah Keidan, Chief Diversity Editor, Law Review Lead on the Symposium, Washington University Law Review, h.f.keidan@wustl.edu

Kaitlyn Salyer, EIC, Washington University Law Review, kaitlynsalyer@wustl.edu

Susan Frelich Appleton, Lemma Barkeloo & Phoebe Couzins Professor of Law, Washington University School of Law, appleton@wustl.edu

Travis Crum, Associate Professor of Law, Washington University School of Law, crum@wustl.edu

Call for Papers:

On Friday September 27, the Washington University Law Review is hosting a Symposium on the 150th anniversary of Minor v. Happersett, the case in which the Supreme Court held that women were not enfranchised by the Fourteenth Amendment's Privileges or Immunities Clause. We're casting a wide net for potential paper topics, and they can range from Reconstruction-era history, 20th century history on women's civil/political rights, feminist theory, and post-Dobbs developments. Abstracts are due by Friday June 14. Please see below for the Call for Papers. This symposium is primarily run by the students, but Professor Susan Appleton and I are serving as faculty co-advisors, and I'd be happy to answer any questions that you may have. The 150th Anniversary of Minor v. Happersett: The Past and Future of Women's Rights Washington University School of Law September 27, 2024 Call for Papers Abstract Submission Deadline: June 14 The Washington University School of Law and the Washington University Law Review will host a Symposium centered on the 150th anniversary of the historic St. Louis case, Minor v. Happersett, on September 27, 2024. (The 150th anniversary will align with the subsequent publishing of the Law Review's Symposium edition as Volume 6 of Issue 102 the following spring.) In 1872, Virginia Minor challenged a St. Louis registrar's decision to block her from registering to vote. Minor argued the Fourteenth Amendment conferred upon her the right to vote as a "privilege" of American citizenship. In 1875, the Supreme Court unanimously rejected Minor's assertion, ruling that voting was not a right of national citizenship. Despite the rejection of Minor's claim, this case remains an important historical moment in both American women's suffrage and the feminist movement at large. This Symposium will bring together scholars across many fields of law, including feminist studies, voting rights and election law, and related fields. Submissions having no direct relation to the Minor case are welcome. Papers might address topics including, but not limited to, the following: • The history and evolution of women's rights • Past or present voting rights and election law • Ballot initiatives post-Dobbs The Symposium will consist of approximately 3-4 panels over the course of one day, with the panels being created by the Law Review based on relatedness of subject matters across selected pieces. Participants will attend and serve on the panels, and will be asked to read up to a dozen papers (with special attention paid to the papers of others on their panel). The papers circulated for the Symposium are drafts, and the discussion on September 27 will include feedback. The Symposium will include a dinner the night before. There is no conference fee, and Washington University will host all of the meals on the conference date. Funding will be available to assist with travel expenses-each participant is eligible for up to $1,000 to reimburse hotel and economy-class airfare expenses. To apply, please submit an abstract of no more than 500 words to symposiums@wustllawreview.org by June 14, 2024. Submissions will be vetted by a committee of students from the Law Review, supervised by faculty advisors (listed below). Selection will be based on the originality of the abstract as well as its capacity to engage with other papers in a collaborative dialogue. Participants will also be invited to submit a paper for publication in the Washington University Law Review's Symposium edition (Issue 6 of Volume 102). The publication cycle for this edition will begin in February 2025, with publication estimated to be in the late summer of 2025. If you are interested in publishing a paper (10,000-15,000 words), please indicate your interest when you submit your abstract. Participants will be notified of their selection by early July. Drafts for distribution at the Symposium will be due on September 6. We look forward to your submissions and participation. Questions can be directed to the organizing Law Review members and their faculty advisors via the symposiums@wustllawreview.org address. Kaitlyn Salyer Editor-in-Chief Washington University Law Review kaitlynsalyer@wustl.edu Susan Frelich Appleton Lemma Barkeloo & Phoebe Couzins Professor of Law Washington University School of Law appleton@wustl.edu Travis Crum Associate Professor of Law Washington University School of Law crum@wustl.edu ------------------------------ Travis Crum Washington University in St. Louis School of Law ------------------------------

Tate on Magna Carta and the Definition of Fundamental Rights @JCTate1215 @TulsaLawReview @SMULawSchool

Joshua C. Tate, Southern Methodist University School of Law, is publishing Magna Carta and the Definition of Fundamental Rights in volume 59 of the Tulsa Law Review (2024). Here is the abstract.

The U.S. Supreme Court has long relied on the language of Magna Carta in interpreting the U.S. Constitution, particularly the Fifth and Fourteenth Amendments. In recent years, the Court has concluded that the absence of certain rights from Magna Carta—and the common law tradition more generally—means that those rights ought not to be considered fundamental today. Some Justices of the Court have also crafted a highly restrictive definition of “liberty” on the basis of Magna Carta and the common law texts interpreting it. This Article argues that the Court has viewed Magna Carta too narrowly, and that “liberty” has a broader meaning in the common law tradition. Reviewing the privileges and liberties of medieval cities that were reaffirmed in Magna Carta, the Article concludes that rights to travel, to conduct one’s business without interference, and to avoid the jurisdiction of oppressive courts are all a part of the common law tradition of liberty and should be considered deeply rooted in our nation’s history and tradition.

Download the article from SSRN at the link.

Williams on Making a Mother: The Supreme Court and the Constitutive Rhetoric of Motherhood @BYULaw

Lucy Williams, Brigham Young University Law School, is publishing Making a Mother: The Supreme Court and the Constitutive Rhetoric of Motherhood in volume 102 of the North Carolina Law Review. Here is the abstract.

Many scholars study Supreme Court decisions, but few are attentive to the rhetoric the Court uses to articulate its holdings. This omission is perplexing: The Court’s rhetoric literally becomes law, but scholars typically fixate on the substance, rather than the rhetoric, of its communications. In this paper, I argue that legal scholars should take more seriously the Court’s role as a rhetorical actor. To illustrate this, I analyze the rhetorical effects of the language the Court uses to describe women and mothers in three contexts: gender discrimination, immigration, and abortion. I begin describing the “inherited language” of motherhood—that is, the narratives, themes, and connotations that are traditionally associated with the idea of motherhood. I then use close readings and discourse analysis of landmark decisions in each substantive area to consider whether and how the Supreme Court engages with that inherited language. My analysis reveals that the Court’s relationship with the inherited language of motherhood varies across contexts. In cases dealing with gender discrimination, the Court anxiously distances itself from traditional narratives about motherhood. In immigration cases, it both embraces and rejects the inherited language. And in abortion cases, its approach has shifted: Initially, the Court strongly disavowed inherited narratives, but in its most recent abortion case, Dobbs v. Jackson Women’s Health Organization, it says very little about mothers at all. My analysis also reveals that the Court’s attitude toward the inherited language of motherhood is often correlated with the substantive legal outcome in a case: In decisions that are more protective of women and their rights, the Court generally rejects the inherited language, but in decisions that are less protective of women’s legal rights, it relies on inherited narratives more frequently. These findings illustrate why legal scholars should be more attentive to the Supreme Court’s rhetoric. The correlation between the Court’s language and substantive outcomes suggests that in some cases, the Court’s rhetorical decisions might influence or even determine its legal analysis. If that is true, then scholars who are interested in case outcomes should study the Court’s language. But the Court’s rhetoric does not just shape case outcomes; it also alters the way we understand, engage with, and view one another. When the Court uncritically invokes traditional narratives and about women and mothers, it may—for better or for worse—perpetuate and reconstitute a world where those outdated assumptions govern. When it actively distances itself from traditional narratives, as it does in gender discrimination cases and early abortion cases, it creates legal and rhetorical space for women to enact various modes of motherhood and womanhood. And when the Court ignores the inherited language of motherhood, it frames legal debates as if women’s interests are not at stake and conceal and, in doing so, obscures women’s perspectives, needs, and lived experiences. Scholars interested in the ways law shapes relationships and facilitates identity formation should pay attention to these constitutive effects.

Download the article from SSRN at the link.

Booth on Delegitimizing the Supreme Court: The Lessons of Dred Scott @JBooth_history @UCLaw_Quarterly

Jonathon Booth is publishing Delegitimizing the Supreme Court: The Lessons of Dred Scott in volume 51 of the UC Law Constitutional Quarterly. Here is the abstract.

This Article examines how anti-slavery Republicans delegitimized the Supreme Court in the aftermath of Dred Scott v. Sandford, 60 U.S. 393 (1857) and compares this history to contemporary attempts to reform the Court or resist its decisions, focusing particular attention on recent cases regarding abortion rights. After Dred Scott was decided, anti-slavery Northerners and Republican politicians immediately attacked the decision as illegitimate dicta, beginning a cycle of delegitimization. As Northerners denounced the decision, Southern states and the federal government began to implement its holdings that Black Americans were not citizens. Arkansas, for example, passed a law expelling all free Black residents of the state. The implementation increased the anger of Northerners and led Northern courts and legislatures to defy the decision openly. Opposition to Dred Scott propelled Abraham Lincoln to the presidency and his administration and the Republican Congress continued the cycle of delegitimization by passing a number of laws, including the Civil Rights Act of 1866 that blatantly contradicted Dred Scott’s holdings. The ratification of the Fourteenth Amendment completed the cycle by formally superseding Dred Scott. This history demonstrates that the Supreme Court’s legitimacy and authority is more tenuous than it appears. The Court’s current legitimacy crisis raises the prospect that a similar cycle of delegitimization could occur today and lead to the repudiation of recent decisions, most notably Dobbs v. Jackson Women's Health Organization, 142 S. Ct. 2228 (2022).

Download the article from SSRN at the link.

McNeill and Tucker on The Shape of Citizenship: Extraordinary Common Meaning and Constitutional Legitimacy @GeorgetownCPT

David N. McNeill, Independent Researcher, and Emily Tucker, Center on Privacy & Technology, Georgetown Law Center, have published The Shape of Citizenship: Extraordinary Common Meaning and Constitutional Legitimacy as a Georgetown University Law Center Research Paper. Here is the abstract.

The United States, it is widely believed, is at a moment of constitutional crisis. At no time since the Civil War era has it seemed more likely that what James Madison called the “experiment entrusted to the hands of the American people”—the experiment in democratic constitutional self-governance—will fail. This article argues that one reason for this state of affairs is that the ‘people’ sense that they are no longer active participants in the experiment. While the historical etiology of this crisis is complex, and the forces involved not confined to the US, this article focuses on the crisis in the legitimacy of the Federal Judiciary—and the role that current orthodoxies in constitutional interpretation have played in fomenting that crisis. The immediate critical target of this article is contemporary jurisprudential uses of what is called “public meaning originalism,” specifically, and ‘textualist originalism’ more broadly, as a theory for the interpretation of those clauses in the US Constitution that refer to fundamental rights and freedoms. This concern with “textualism,” however, is primarily diagnostic. For, despite its relative unpopularity among most contemporary legal theorists, the application of “public meaning originalism” by the US Supreme Court is perfectly consistent with the dominant legal theoretical approach in the English-speaking world. The extremity of the Court’s recent ‘textualist’ jurisprudence provides an excellent illustration, or reminder, of the dangers of legal positivist jurisprudence. In arguing against textualist originalism, this article defends a version of the anti-positivist distinction between legal rules and legal principles, most famously associated with the work of Ronald Dworkin. It argues, however, that this distinction cannot be captured by understanding constitutional principles in terms of moral principles, as Dworkin suggests. Instead, constitutional principles must be understood as deliberative principles of political association and communal self-determination. The primary subject of this article, then, is the character of fundamental constitutional law; our hope is that the current crises in democratic constitutional legitimacy can help make salient certain aspects of the relation between popular sovereignty and constitutional legitimacy that are harder to discern in less fractured political climates. This article begins, in Part One, with a consideration of the Roberts Court’s recent jurisprudence, focusing on three landmark opinions issued in June of 2022: Dobbs v Jackson Women’s Health Organization, Kennedy v. Bremerton School Dist. and West Virginia v EPA. The point of revisiting this recent history will not be—or will not only be—to decry these rulings as anti-democratic and constitutionally ill-founded. The point, rather, will be 1) to see these rulings as consolidations of the Court’s newly asserted constitutional authority, and 2) show how contemporary positivist constitutional theory has helped prepare the way for the Court’s manipulation of the constitutional order. Part Two begins to elaborate an anti-positivist alternative both to legal positivism and to natural law legal theory. In agreement with traditional natural law theorists, it is argued that the distinction between illegitimate and legitimate expressions of political authority depends on the degree to which a system of authority is directed toward a common good. In disagreement with those theorists, however, this article contends that the common good of a political community is determined by the communal deliberative activity of a political community, and that the deliberative determination of a common good is the normative foundation of that community. Part Three focuses on the First Amendment of the US Constitution with two aims in mind. First, to illustrate the account of constitutional law here advocated, it offers a reading of the First Amendment as an attempt to put into words a shared understanding among the ratifiers of the Bill of Rights of what this article calls ‘the shape of citizenship’ in our constitutional democracy. Second, it shows how the Court’s recent opinions have radically subverted the last vestiges of this original connection between constitutional rights and the foundational principles of constitutional self-government. In Dobbs v Jackson, in particular, the Court asserts an understanding of constitutional rights as merely a particular structural variant of positive law, and in so doing effectively makes the legal order a sovereign power over the people, rather than an expression of and vehicle for their common self-determination.

Download the article from SSRN at the link.

Tang on Lessons From Lawrence: How "History" Gave Us Dobbs--And How History Can Help Overrule It @AaronTangLaw @UCDavisLaw @YaleLJournal

Aaron Tang, University of California, Davis, School of Law, is publishing Lessons From Lawrence: How "History" Gave Us Dobbs—And How History Can Help Overrule It in volume 133 of the Yale L. J. Forum (2023). Here is the abstract.

Dobbs v. Jackson Women’s Health Organization is not the first time the Supreme Court has relied on dubious history to deny a constitutional right of profound importance. When the Court rejected what it described as the right of “homosexuals to engage in acts of consensual sodomy” in Bowers v. Hardwick, it did so based on disputed historical claims about criminal sodomy laws in early America. Indeed, when the Court later overruled Bowers in Lawrence v. Texas, it openly confessed that Bowers’s “historical premises are not without doubt and, at the very least, are overstated.” This Essay explores three important lessons that reproductive justice advocates can learn from how Lawrence used history to discredit Bowers. First, Lawrence shows that Dobbs is vulnerable to overruling because it, like Bowers, rests on faulty historical premises, including (but hardly limited to) Dobbs’s self-proclaimed “most important historical fact” that 28 out of 37 states banned abortion throughout pregnancy as of the Fourteenth Amendment’s enactment. Second, Lawrence suggests that these historical errors should undermine any claim Dobbs might make to stare decisis treatment. Finally, Lawrence reveals history’s limited utility in modern constitutional disputes. The problem with Dobbs’s dubious history, Lawrence teaches, is not that it represents the misapplication of a tractable test. The problem is that the history-and-tradition test Dobbs purports to apply is often deeply underdeterminate.

Download the article from SSRN at the link.

Siegel on How "History and Tradition" Perpetuates Inequality: Dobbs on Abortion's Nineteenth-Century Criminalization @YaleLawSch @HoustonLRev

Reva Siegel, Yale University Law School, is publishing How "History and Tradition" Perpetuates Inequality: Dobbs on Abortion's Nineteenth-Century Criminalization in volume 60 of the Houston Law Review (2023). Here is the abstract.

In this Commentary, I show how the tradition-entrenching methods the Court employed to decide New York State Rifle & Pistol Ass’n, Inc. v. Bruen and Dobbs v. Jackson Women’s Health Organization intensify the gender biases of a constitutional order that for the majority of its existence denied women a voice in lawmaking and restricted women’s roles. The tradition entrenching methods the Court employed to decide Bruen and Dobbs elevate the significance of laws adopted at a time when women and people of color were judged unfit to participate and treated accordingly by constitutional law, common law, and positive law. The methods the Court employs are gendered in the simple sense that they tie the Constitution’s meaning to lawmaking from which women were excluded and in the deeper sense that the turn to the past provides the Court resources for expressing identity and value drawn from a culture whose laws and mores were more hierarchical than our own. Sampling their recent opinions, Part II of this Commentary shows that the conservative Justices have repudiated past practices when those practices expressed racism or nativism to which the Justices objected. Yet, Part III of this Commentary shows that in Dobbs the conservative Justices embraced past practices as the nation’s history and tradition, counting abortion bans enacted with the support of the nineteenth-century anti-abortion campaign without scrutinizing evidence that the campaign mixed arguments for protecting unborn life with arguments that banning abortion would prevent ethnic replacement and would enforce wives’ marital and maternal roles. In Part IV, I suggest that Justice Alito might have refused to defer to prejudice of the past as he did in Espinoza v. Montana Department of Revenue if he saw religious liberty, rather than abortion rights, at stake. There are several reasons for revisiting the claims about abortion, history, and tradition on which the Dobbs decision rests. Even if the Supreme Court itself never acknowledges Dobbs’s selective and inaccurate account of the historical record, as it acknowledged historical errors of Bowers v. Hardwick in Lawrence v. Texas, there is value in recognizing that the Court’s claims about the past have a politics. In demonstrating that the Court selectively defers to the past, this Commentary shows how the Court’s history-and-traditions method provides new justifications for enforcing old forms of status inequality. This Commentary builds the historical record critical to debates over the criminalization of abortion in state courts and legislatures. And it contributes to Professor Melissa Murray’s remarkable and wide ranging account of how the jurisprudence of Bruen and Dobbs is gendered: Children of Men: The Roberts Court’s Jurisprudence of Masculinity.

Download the essay from SSRN at the link.

Rice on Repugnant Precedents and the Court of History @daniel_b_rice

Daniel B. Rice, Duke University School of Law, has published Repugnnant Precedents and the Court of History. Here is the abstract.

The Supreme Court’s precedents continue to tolerate many practices that would shock modern sensibilities. Eugenic sterilization, race-based naturalization, forced labor on public roads, the conscription of child soldiers, and the exclusion of non-heterosexual immigrants all remain ostensibly valid policy options. Yet the Court lacks standard tools for phasing out decisions that offend our national character. The very societal shifts that have reoriented our normative universe have also insulated most repugnant precedents from direct attack. And the familiar stare decisis factors cannot satisfactorily explain what ails culturally outmoded decisions. Even for Justices inclined to condemn these cases in less clinical terms, it is unclear what qualifies courts to make universalist claims about America’s deepest values. The Court recently sidestepped these difficulties by insisting that one of its most reviled decisions had been “overruled in the court of history.” In substituting rhetorical flair for analytical precision, however, the court-of-history trope threatens to destabilize the Court’s doctrines of horizontal and vertical precedent. This Article urges greater normality in implementing perceptions of national ethos. It first defends the inquiry’s legitimacy by recovering a longstanding judicial tradition of pronouncing specific practices abhorrent to American values. It then underscores the project’s stakes by identifying an assortment of precedents that trudge along as ethical outcasts. After highlighting various tangible and expressive harms that these decisions can still inflict, I propose that the Court integrate its ethical judgments into the existing stare decisis framework. And I challenge the Court’s presumed incapacity to dislodge vestigial precedents. These relics may be difficult to pry loose, but we are not stuck with them forever.

Download the article from SSRN at the link.

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.

Manners on Executive Power and the Rule of Law in the Marshall Court: A Re-reading of Little v. Barreme and Murray v. Schooner Charming Betsy @Jane_C_Manners

Jane Manners, Columbia Law School, is publishing Executive Power and the Rule of Law in the Marshall Court: A Re-Reading of Little v. Barreme and Murray v. Schooner Charming Betsy in volume 89 of the Fordham Law Review (2021). Here is the abstract.

This Essay uses two 1804 opinions by Chief Justice John Marshall to explicate a world in which understandings of executive power and the rule of law were very different from those that predominate today. Scholars have misread Little v. Barreme and Murray v. Schooner Charming Betsy, this Essay argues, because they apply modern assumptions about the balance of power between Congress and the executive that do not fit the Marshall Court’s constitutional vision. Contemporary interpretations read Little for the propositions that the president’s inherent wartime power may be limited by statute and that early American jurists rejected officers’ “good faith” defenses to liability for tortious acts. But the opinion in fact reflects the Marshall Court’s view that, in an undeclared war, the president could not act at all unless authorized by Congress and that under no circumstances could the president give an officer a right to act where Congress had not. Charming Betsy, meanwhile, is known today for the “Charming Betsy canon”: Marshall’s assertion that wherever possible, courts ought to interpret the laws of Congress to accord with international law. In its historical context, however, the case illustrates Marshall’s view of the law of nations not as an external constraint on sovereignty—a common understanding of international law’s role today—but as an aspect of the rule of law critical to preserving the proper allocation of powers between Congress and the president. Indeed, read together, these cases show Marshall using the law of nations to reinforce a tenet central to the separation of powers in the new republic: that only Congress could alter the nation’s war footing. Through Little and Charming Betsy, the Marshall Court sought to foreclose Congress’s efforts to abdicate its responsibility to authorize acts of war and thus to underscore the constitutional balance that placed the war-making and lawmaking power not with the courts, not with the executive, but with Congress.

Download the essay from SSRN at the link.

Newly Published: Painting Constitutional Law: Xavier Cortada's Images of Constitutional Rights, edited by M. C. Mirow and Howard W. Wasserman @BrillPublishing

Newly published: Painting Constitutional Law: Xavier Cortada’s Images of Constitutional Rights (M. C. Mirow and Howard W. Wasserman, eds., Brill, 2021) (Legal History Library; 46). Here from the publisher's website is a description of the book's contents.

In May It Please the Court, artist Xavier Cortada portrays ten significant decisions by the Supreme Court of the United States that originated from people, places, and events in Florida. These cases cover the rights of criminal defendants, the rights of free speech and free exercise of religion, and the powers of states. In Painting Constitutional Law, scholars of constitutional law analyse the paintings and cases, describing the law surrounding the cases and discussing how Cortada captures these foundational decisions, their people, and their events on canvas. This book explores new connections between contemporary art and constitutional law. Contributors are: Renée Ater, Mary Sue Backus, Kathleen A. Brady, Jenny E. Carroll, Erwin Chemerinsky, Xavier Cortada, Andrew Guthrie Ferguson, Leslie Kendrick, Corinna Barrett Lain, Paul Marcus, Linda C. McClain, M.C. Mirow, James E. Pfander, Laura S. Underkuffler, and Howard M. Wasserman.

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.