Tag Supreme Court

What Kinds of “Supreme Court Reform” Could Rebalance the Supreme Court?

Mark Tushnet— Progressives both in Congress and outside it have begun to talk seriously about “Supreme Court reform” in the aftermath of Justice Ruth Bader Ginsburg’s passing and her replacement—as it now seems—by Judge Amy Coney Barrett. Discussions have focused on three possible methods of “rebalancing” the Supreme Court: enlarging

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Ruth Bader Ginsburg’s Opera

William N. Eskridge Jr.— Ruth Bader Ginsburg passionately loved her family, her job as a judge, constitutional law, and opera—not always in that order.  I first came to know and admire Ruth through our shared academic interests and through my beloved Georgetown colleague Marty Ginsburg. But in the last decade,

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The Chances of a 4-4 Supreme Court Split on Election Issues is Not a Reason to Rush a Supreme Court Confirmation; it’s a Reason to Wait to Confirm a Justice

Rick Hasen— Within minutes of the announcement of Justice Ginsburg’s death, we started seeing the argument advanced that a Supreme Court confirmation needs to be rushed so that a Justice is in place before the election, so as to break a potential 4-4 tie on an 8-Justice Supreme Court. President Trump made

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Bostock and Originalism

Mark Tushnet— On June 15, 2020, the Supreme Court decided Bostock v. Clayton County. Dividing 5-4, the Court held that the ban on employment discrimination “because of sex” in Title VII of the 1964 Civil Rights Act extended to discrimination against gays, lesbians, and transgender people. Remarkably, both Justice Neil

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Rethinking the History of Religious Freedom

Robert Louis Wilken— In the Supreme Court case Minersville School District v. Gobitis, 1940, that upheld compulsory pledging of allegiance to the U.S. flag in schools, Justice Felix Frankfurter, writing for the majority, said: “Centuries of strife over the erection of particular dogmas as exclusive or all-comprehending faiths led to

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The “Seriatim Practice” of the Supreme Court

Paul W. Kahn—   We can imagine a state in which courts issued judgments without explanation. The need to settle disputes requires some form of adjudicatory mechanism; it does not necessarily require explanation of the decisions. When there is explanation, the form of presentation has varied over time. The American

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On “Chefs,” Wedding Cakes, and Corporate Personhood

Kent Greenfield— I was driving the other day with my kids in the car. Henry, like most five-year-olds, is full of questions. “Where do people come from?” “If you could be any animal, what would it be?” “When is my Thor Halloween costume going to arrive?” But this day, his

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Closing the Courthouse Doors to Challenges to the Trump Presidency

Erwin Chemerinsky— The first weeks of the Trump presidency demonstrate that the federal judiciary must be available as an essential check to enforce the Constitution. Already many lawsuits have been filed against President Trump and his administration, such as for violating the “emoluments clauses” of the Constitution, for the travel

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The Children of the Amistad

Benjamin N. Lawrance— March 9 marks the 174th anniversary of the Supreme Court decision U.S. v Amistad, one of the most celebrated U.S. “freedom suits.” Since the case’s conclusion in 1841, the charismatic leadership of Cinqué (Sengbe Pieh) and the rhetorical prowess of former President John Quincy Adams and others

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Has the Supreme Court Evolved with the Times?

Anna Harvey— On October 19, 1789, John Jay took the oath of office to begin serving as our nation’s first Chief Justice of the Supreme Court. The canonical story about Jay’s service as Chief is that he resigned from the bench in 1795 to serve as New York’s second governor (after

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