In this Article, we ask whether some liberal justices have followed a strategy of judicial appeasement in recent cases involving religious freedom, especially under the Establishment Clause. We begin by specifying a conception of appeasement, which we define as a sustained strategy of offering asymmetric concessions for the purpose of avoiding further conflict, but with the self-defeating effect of

The Court’s decisions in Trump v. Hawaii and Department of Commerce v. New York suggest an inside-out Constitution, with the Court treating the Constitution’s insiders in ways typically reserved for those outside of the scope of its full protection. The Census 2020 Case, in particular, highlights two important ways that the Court has constructed this inside-out Constitution. First, as discussed in

In this article, I argue that in the seemingly straightforward ruling in Iancu v Brunetti, striking down a provision of the law governing trademarks, the Court revealed a significant clarification of the limits of the doctrine of viewpoint discrimination. In free speech doctrine, the Court is unanimous in condemning viewpoint discrimination, but its contours remain “slippery” because viewpoint bias

Supreme Court precedent is a topic of perennial prominence. The Court overruled or severely limitedmultiple precedents last year, just as it did the year before that. Because of our widely repeated norm of stare decisis, every overruling is criticized. Scholars have then debated whether the Court needs a stronger norm of stare decisis, so that it overrules fewer cases. This focus is misguided. Rather

This article assesses where the Supreme Court stands on administrative law after the 2018 term, focusing on Kisor v. Wilkie and Department of Commerce v. New York. Over the last decade, the Roberts Court had demonstrated increasing concerns about an out-of-control federal bureaucracy at odds with the constitutional order, but hadn’t pulled back significantly on administrative governance in practice

Once upon a time, Carolene Products provided an inspiring charter for the exercise of the power of judicial review. Intervene to correct flaws in the political process, Carolene instructed courts, but otherwise allow American democracy to operate unimpeded. In this Article, I use the Supreme Court’s recent decision in Rucho v Common Cause to argue that the current Court flips Carolene on its head.

Flowers v Mississippi is a Supreme Court case about a man who was tried six times for the same crimes. The trials took place over a span of twenty-one years. In four of the trials, there was a conviction, but appellate courts reversed because of prosecutorial misconduct. In the other two trials, the jury was unable to reach a unanimous verdict, and the judge declared a mistrial. Curtis Flowers was

No discerning student of the Supreme Court would contend that Justice Anthony Kennedy broadly interpreted the Fourth Amendment during his thirty years on theCourt. For example, inMaryland v King, a 2013 case that Justice Samuel Alito described as “perhaps the most important criminal case that this Court has heard in decades,” Justice Kennedy’s majority opinion rejected a Fourth Amendment challenge

In Carpenter v United States, the Supreme Court struggled to modernize twentieth-century search and seizure precedents for the “Cyber Age.” Twice previously this decade the Court had tweaked Fourth Amendment doctrine to keep pace with advancing technology, requiring a search warrant before the government can either peruse the contents of a cell phone seized incident to arrest or use a GPS tracker to

The evolution of Fourth Amendment doctrine over the past century bears a striking resemblance to Hamlet’s descent into insanity. Step by step, faced by increasingly sophisticated technologies, the Court has crafted rules, exceptions, and exceptions to the exceptions, until we find ourselves in an incoherent world that bears little relationship to the original rights it encompasses. The Founders introduced

Since its inception, the Roberts Court has acquiesced in—and at times even abetted—the attempts of many states to make it harder for Americans to vote. Illustrative is a 2018 decision, Husted v. A. Philip Randolph Institute, in which the Court rejected a statutory challenge to a state’s expansive purges of voting lists. In Husted the Court dismissed the threat of voter suppression as simply not “relevant”

Masterpiece Cakeshop v Colorado Human Rights Commission has been discussed in fairly specific terms—the collision of liberty and equality; or, more particularly, religious freedom versus antidiscrimination norms. This frame is certainly accurate, though hardly exhaustive. There are a number of lenses through which we might understand this case. And, indeed, different lenses may cast the Court’s decision

Murphy v National Collegiate Athletic Association is perplexing. The Court, 7–2, emphatically held that key provisions of the federal Professional and Amateur Sports Protection Act (PASPA) did not operate as permissible federal preemption but instead unconstitutionally commandeered state legislative processes in violation of federalism principles, and by a 6–3 margin ruled that no other part of the

To an increasing degree, Supreme Court justices have been explicitly invoking the alleged constraints of stare decisis, especially by way of criticizing justices thought to be ignoring those constraints. But this accelerating use of stare decisis as a rhetorical weapon is at odds with what the data show about the frequency with which stare decisis actually operates as a genuine constraint on Supreme

have in mind heckling at political meetings, not at ball games or comedy performances. sports heckling, see articles like Knock Me Out at the Old Ball Game, 56 Or State Bar tin 42 (1996), and cases like Simmons v Baltimore Orioles Inc., 712 F Supp 79, 79 (WD Va ). For heckling of comedians, see generally Keith Fields, How to Handle Hecklers: The lete Guide to Dealing with Every Performer’s Worst Nightmare

The Supreme Court accords starkly different treatment to private expression and government speech for First Amendment purposes. While regulation of private speech generally must be viewpoint neutral, the government is subject to no such requirement when it engages in speech of its own. But the line between private expression and government speech is often fuzzy. To draw this distinction, the Supreme

Fittingly, the most imaginative and densely suggestive of the classic arguments for free speech was written by a poet. Had his career unfolded as he wished, John Milton would never have produced his renowned Areopagitica of 1644. It was only with great reluctance that he undertook to engage in prose polemics during the English CivilWar, sacrificing his “calm and pleasing solitariness” to “embark in

Some things, people say, are “gone forever.” But what exactly does that mean? At a minimum, it suggests that certain losses are final in the sense that they are irreversible. Such losses are irreparable in the sense that nothing can be done to restore the status quo ante—or if something can be done, it is not enough (or perhaps outsiders can never know if it is). The experience of grief is usually

The Supreme Court during the Chief Justiceship of John Marshall is associated with endorsement of broad regulatory powers in Congress and broad federal question jurisdiction in the federal courts under Article III. By contrast, the successor Court under Chief Justice Roger Taney remains tied to its determination in Dred Scott that Congress lacked powers to enact the Missouri Compromise prohibiting

Equal protection law no longer recognizes so-called “inherent differences” among the races as a justification for discrimination. The law takes a different view of sex. It continues to recognize “inherent differences” as a legitimate ground for treating men and women differently — as long as the differential treatment does not perpetuate women’s subordination or reinforce traditional sex stereotypes

Almost a century ago, Justice Holmes famously declared that a regulation becomes a taking of property if it goes too far. Judges and scholars have struggled ever since to give meaning to this test.Murr v Wisconsin is the most recent Supreme Court decision wrestling with this issue. This 2017 decision seems to have been something of a sleeper, because it is lacking in dramatic facts or stirring rhetoric

Since 2010, when Elena Kagan replaced John Paul Stevens, all of the Republican-nominated Justices on the Supreme Court have been to the right of all of its Democratic-nominated Justices. This pattern is widely recognized, but it is not well recognized that it is unique in the Court’s history. Before 2010, the Court never had clear ideological blocs that coincided with party lines. Today’s partisan

In Spokeo v Robins, the Supreme Court confronted one of the harder questions of its intricate law of standing to sue. The question is whether Article III of the Constitution limits Congress's ability to create legal rights that can be vindicated in federal court -- and, if so, what those limits are. The Court's cases had provided two contradictory approaches to answering it. Boxed in by these conflicting

Obergefell v Hodges, the Supreme Court’s decision invalidating state same-sex marriage bans, was widely perceived as the work of a partisan elite imposing its policy preferences on the American people. Two aspects of the decision support this conclusion. First, the case was decided by the narrowest possible margin, with Justices splitting along ideological lines. Second, the majority opinion is not

The nature and sources of the New Deal Constitutional Revolution are among the most discussed and debated subjects in constitutional historiography. Scholars have reached significantly divergent conclusions concerning how best to understand the meaning and the causes of constitutional decisions rendered by the Supreme Court under Chief Justice Charles Evans Hughes. Though recent years have witnessed

The distinction between content-based and content-neutral regulations of speech is one of the most important in First Amendment law. Despite its importance, however, the Court has had trouble defining what it means for a law to be content-based. Instead, for over thirty years, the Court has vacillated between two definitions. In one line of cases, the Court has insisted that laws are content-based

The “root meaning” of the Sixth Amendment’s Counsel Clause is the right to retain counsel of one’s choice. Yet until just last Term, no criminal defendant had ever persuaded the U.S. Supreme Court to reverse a conviction on counsel-of-choice grounds; many had tried in vain. I consider in this paper whether there is any satisfying, functional account that can explain the disjuncture between what the

The mosaic theory of the Fourth Amendment holds that, when it comes to people’s reasonable expectations of privacy, the whole is greater than the sum of its parts. More precisely, it suggests that the government can learn more from a given slice of information if it can put that information in the context of a broader pattern, a mosaic. This insight, that the incremental privacy threat posed by the

Zivotofsky v Kerry concerns disputed borders, territorial and constitutional. Is Jerusalem part of Israel? May Congress force the President to issue passports that are premised on the conviction that Jerusalem is within Israel? The Court disclaimed any desire to opine on the first question. On the second, it declared that the Constitution grants the President an exclusive power to recognize other nations

The Supreme Court's much anticipated invalidation of gay marriage bans improved the personal lives of millions of ordinary Americans. It made the country a more decent place. Even Chief Justice Roberts, at the conclusion of his otherwise scathing dissent, acknowledged that the decision was a cause for many Americans to celebrate.But although the Chief Justice thought that advocates of gay marriage

In this article, I use the 2014 decision of Lane v. Franks as a jumping off point to revisit the rule of Garcetti v. Ceballos, that speech conducted pursuant to one’s public employment is unprotected by the First Amendment. I explain that Garcetti is emblematic of the Supreme Court’s failure to dig beneath the surface of its own long-standing acknowledgment that public employee speech holds special

It all depends on where you start. For free speech questions arising under the First Amendment, as for a cornucopia of other legal topics, a single set of facts or a single question may be placed in any of a number of different doctrinal categories, with the category selected determining not only the analytic approach but also often the outcome as well. Psychologists and other social scientists refer

In Heien v. North Carolina, the Supreme Court held 8-1 that a search or seizure can be lawful under the Fourth Amendment despite its being founded on a government agent’s mistake of law, as long as the mistake was “reasonable.” The gist of the opinion was symmetry: Just as probable cause and reasonable suspicion do not require the police to be correct about the facts, but merely to have the right level

For many years, the docket books kept by certain of the Taft Court justices have been held by the Office of the Curator of the Supreme Court. Yet the existence of these docket books was not widely known, and access to them was highly restricted. In April of 2014, however, the Court adopted new guidelines designed to increase access to the docket books for researchers. This article offers a report and