Supreme Court

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• SOURCE: The Atlantic
  10/3/2022
  

  Judge Luttig: Independent State Legislature Theory is Nonsense

  by J. Michael Luttig

  "Such a doctrine would be antithetical to the Framers’ intent, and to the text, fundamental design, and architecture of the Constitution."

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• 9/25/2022
  

  Does Marital Status Discrimination Hold the Key to Protecting Sexual Freedoms from SCOTUS?

  by Marc Stein

  As concern rises that the court might revoke the rights to same-sex marriage and contraception while reinstating the criminalization of gay sex, advocates for reproductive and sexual freedom need to consider how to make the equal protection argument that rights individuals enjoy in marriage can't be denied to individuals outside of them. 

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• SOURCE: The New Republic
  9/19/2022
  

  Will SCOTUS Revisit the Second Class Citizenship of American Samoans?

  Unique among non-state U.S. territories, people born in American Samoa are not granted citizenship by birth. This legal anomaly traces back to the acquisition of Pacific islands from Spain in a climate of American imperialism and white supremacy. 

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• SOURCE: Politico
  9/15/2022
  

  "Independent State Legislature" Legal Theory Based in Fake History

  Charles Pinckney's ideas for the Constitution were rejected by the framers. Years later, he produced fake documents to aggrandize his own role at the convention. Right-wing legal activists have used them to argue that state legislatures can decide election results however they want. 

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• SOURCE: PBS News Hour
  9/11/2022
  

  Rick Hasen: Moore v. Harper and its Potential Impact on Elections

  Major dark money donors have pushed a case to the Supreme Court that could allow state legislatures to overturn the will of voters to decide statewide elections and electoral college votes, says election law expert Rick Hasen. 

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• SOURCE: Chronicle of Higher Education
  9/2/2022
  

  Legal Scholar: "Diversity" a Weak Substitute for Justice, Opened Door to SCOTUS Killing Affirmative Action

  by Richard Thompson Ford

  The cause of equality was dealt a fatal blow when courts and colleges shifted the focus of affirmative action from fighting racism to promoting diversity, argues legal scholar Richard Thompson Ford. 

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• SOURCE: The Conversation
  9/6/2022
  

  The Supreme Court Ignored the 19th Century "Voluntary Motherhood" Movement

  by Lauren Thompson

  Abortion is, indeed, a deeply rooted right in American history, demonstrated by the extent to which women have worked to control reproduction. 

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• SOURCE: The New Yorker
  8/28/2022
  

  Alito's Battle Against Secular Society is Just Getting Started

  "Some baby boomers were permanently shaped by their participation in the countercultural protests and the antiwar activism of the nineteen-sixties and seventies. Others were shaped by their aversion to those movements. Justice Samuel Alito belongs to the latter category."

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• SOURCE: MSNBC
  8/28/2022
  

  Leslie Reagan: Pro-Life is a Historical Misnomer

  The author of "When Abortion Was a Crime" discusses the pro-life movement with Washington Post columnist Jennifer Rubin. 

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• SOURCE: The New Republic
  8/26/2022
  

  The New Wave of Court Activism Revives Interest in Felix Frankfurter, a Hands-Off Justice

  by John Fabian Witt

  Historian and legal scholar Brad Snyder's new biography shows Justice Frankfurter's concern for courts moving too far away from the decisions of elected legislators echoed in today's battles over abortion, guns and religion—by both sides. 

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• SOURCE: Made By History at the Washington Post
  8/15/2022
  

  What Justice Kavanaugh Gets Wrong About the Court and Politics

  by William E. Nelson

  At the founding, the idea that the law was distinct from politics had not yet emerged. Since then, courts have often intervened in political matters, and doing so often prevented worse outcomes. 

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• SOURCE: The Trace
  8/5/2022
  

  The NRA's Amicus Brief Machine

  Lax disclosure rules about who funds the groups filing amicus briefs means that the NRA has been able to use its wealth to flood the courts with briefs that exaggerate the strength of its radical pro-gun positions, says historian Patrick J. Charles. 

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• SOURCE: Vox
  8/8/2022
  

  What Happens When SCOTUS is This Unpopular?

  It's not unprecedented for Justices to shift their positions when confronted with public outrage, but five of the current members of the court have explicitly declared their indifference to public outcry, and understand there's little to constrain their future decisions. 

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• SOURCE: Michael Smith's Law Blog
  8/10/2022
  

  Choosing History—A Rejoinder to William Baude on The Use of History at SCOTUS

  by Michael Smith

  The problem with the historical arguments in this term's SCOTUS decisions is that the court isn't "using" history but "choosing" it—deciding whether or not historical examples map onto present beliefs about the legitimacy of rights or regulations. 

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• SOURCE: Washington Post
  8/8/2022
  

  Law Prof: If Recent SCOTUS Decisions Relied on Bad History, Opponents Need to Come Up with a Better Version

  William Baude of the University of Chicago argues that if historical arguments have been used selectively in recent cases, it opens the door for dissenting justices to propose more compelling narratives about the constitutional basis of rights. 

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• SOURCE: The Atlantic
  8/7/2022
  

  Church-State Separation is Alien to Many Americans' Faith

  by Caleb Gayle

  The "classical" Christian curriculum pushes a historical vision that America was conceived by God as a beacon of righteousness, and that Christian duty is to eliminate secularism and religious pluralism. 

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• SOURCE: Made By History at the Washington Post
  8/9/2022
  

  Alito is Fulfilling Promises to the Supporters to Demolish Church-State Separation

  by Duncan Hosie

  The Justice was elevated to the high court by supporters who imagine the First Amendment supports the pervasive influence of Christianity on public life and who reject the premise of a secular state. He is meeting their highest expectations. 

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• SOURCE: New Books Network
  8/4/2022
  

  Corey Robin on the Enigma of Clarence Thomas

  The political scientist's 2019 biography of the Justice comes in for new attention with Thomas's controversial judicial opinions (and the alleged actions of his wife on January 6). 

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• SOURCE: Made By History at the Washington Post
  8/2/2022
  

  SCOTUS Hasn't Always Been the Final Arbiter; Liberals Should Stop Thinking it Is

  by Joseph Fishkin and William E. Forbath

  "Liberals drew the wrong lessons from the mid-20th century federal judiciary’s fleeting embrace of social reform, and forgot that over the long arc of U.S. history, the minority rights the court has most consistently safeguarded have been those of the wealthy and powerful, the corporate, landed and enslaver elites."

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• SOURCE: Vox
  8/2/2022
  

  A Substantive Due Process Explainer: What Was the Basic Weakness of Roe?

  The application of the 14th Amendment to extend broad guarantees of individual rights is recent; the history of the doctrine of substantive due process has more frequently been used to protect the interests of corporations and the powerful. It's time for a new legal approach.