SCOTUS

March 15, 2021 0

Rethinking Originalism

 (Source) Introduction With Amy Coney Barrett’s confirmation, the Supreme Court now has a firm supermajority of Republican-nominated justices for the first time in over a decade. Although this almost certainly will affect how the Court will now decide on a host of crucial policy issues moving forward, from allegations of electoral fraud, to abortion, to gun rights, to constitutional issues arising out of the coronavirus lockdowns, many Republicans see Justice Barret’s nomination as the last frontier to effectuate meaningful political change given the ongoing and seemingly endless gridlock affecting both the Presidency and Congress.  While it is true that the Court has for several decades now had a firm majority of justices selected by Republican presidents, some of the most landmark cases of the past five decades (i.e., Roe, Obergefell, and Sebelius, just to name a few)—often perceived as reaching the “liberal outcome” in terms of expanding substantive due process constitutional rights that went beyond the plain meaning of the text—were actually penned by Republican-appointed justices. The most notable of these decisions, Roe v. Wade, codifying the right to abortion, was written by Harry Blackmun, a Richard Nixon appointee.  Relatedly, John Roberts, who was appointed as Chief Justice by President [read more]
November 16, 2020 0

An Overdue Overturning: The Insular Cases and the Need for Heightened Judicial Review for Puerto Rico

(Source)   In the aftermath of Hurricane Maria, which left the entirety of Puerto Rico without power, President Donald Trump visited the island. Towards the end of his trip, President Trump began tossing paper towels into a crowd — as if he were a rock star tossing T-shirts to a concert crowd. This conduct, while disrespectful, perhaps serves as an allegory of the United States’ treatment of Puerto Rico throughout the island’s history. Despite being U.S. citizens, Puerto Ricans are treated as second-class citizens who are not afforded most of the fundamental rights of mainland Americans. Most notably, Puerto Ricans are not allowed to vote in U.S. elections. This second-class treatment is the result of Puerto Rico’s territorial status as an “unincorporated territory.” The constitutional backbone of this arrangement was cemented by the Supreme Court in the Insular Cases of the early 1900s. These cases, which justified the United States’ colonial expansion and unilateral control over its territories, are still held as good law today. In light of the disparate treatment Puerto Ricans receive and the racist context in which the Insular Cases were written, it is time for American jurisprudence and the Supreme Court to overturn these cases and [read more]
October 26, 2020 0

The Cost of Congress Kicking the Can on DACA

(Source)   In 2012, the U.S. Secretary of Homeland Security established Deferred Action for Childhood Arrivals (“DACA”) in an attempt to address the issue of deporting immigrants who were brought to the U.S. as children, never received legal status, and have lived continuously in the U.S. since 2007. Since its implementation, around 800,000 individuals have benefitted from the program’s provision of employment authorization and temporary relief from deportation. Despite the benefits the program has provided, it does not provide qualified recipients with permanent legal status or a path to citizenship. Furthermore, the program’s administrative implementation and lack of legislative endorsement leave the future of DACA vulnerable to a piecemeal reduction of the program’s benefits through litigation or a complete rescission of the program by the executive branch. This current state of Congressional ambivalence harms DACA recipients and DACA-eligible young people, while also financially harming American communities, businesses, and academic institutions.   DACA Litigation On September 5, 2017, the Trump administration announced that it would rescind DACA, triggering a wave of lawsuits challenging the program’s validity. Parties opposing Trump’s decision to rescind DACA filed ten lawsuits, between January 2018 and June 2020, requesting preliminary injunctions that would require United States Citizenship [read more]
October 23, 2020 0

Native Nations & Rural America: An Unlikely Partnership?

(Source) Introduction In the wake of McGirt v. Oklahoma, Tribes across America celebrate the Supreme Court’s reaffirmation of tribal sovereignty and self-governance. In the landmark case, the Court held that the Muscogee Creek reservation had not been disestablished and that criminal jurisdiction remained with the Tribe and the federal government – not the state. This cause for celebration brings with it new economic pressures for Oklahoma Tribes. With criminal jurisdiction, a Tribe must have adequate infrastructure including courts, jails, employees for both, and additional resources related to criminal justice systems. The Court’s decision restored criminal jurisdiction to the Tribe for much of Eastern Oklahoma. The reservation spans over three million acres, and includes the state’s second largest city, Tulsa. Although criminal jurisdiction is limited by the Major Crimes Act, nearly 300,000 Native Americans live within the reservation. Cases involving Native American perpetrators of a crime on the reservation are now directed to the Tribe’s one district court, Okmulgee, where the court and the tribal services are located, is a forty-five minute drive from Tulsa, and an even further drive for individuals from towns at the edge of the reservation.  For successful application, the McGirt ruling demands funding and infrastructure that [read more]
October 19, 2020 0

Setting the Course for the Supreme Court: What to Do About the Court’s Politicization

(Source) Justice Ruth Bader Ginsburg, a liberal icon, died on September 18, 2020, and the Supreme Court holds the national spotlight as Trump and the Senate prepare to appoint conservative Amy Coney Barrett to the Court. The public reacted immediately and intensely to Republicans’ decision to push a nominee through the Senate weeks before the election. Some lambasted Trump’s decision as “cynical and insulting to the millions of women who view the late Supreme Court justice as a feminist icon,” while some praised the decision as a “powerful, positive statement.” Much of this rhetoric around the current nomination process reveals, and exacerbates, intense partisan conflict. So, how did we arrive at such a polarized and politicized nomination process for the Supreme Court? Perhaps the Supreme Court never was the independent and high-minded institution we have imagined it was in the past. Rachel Shelden, a history professor at Penn State, points out that “[n]ineteeth-century Americans. . . understood that the Supreme Court would be [partisan],” and that “partisan fidelity — not legal ability — was the primary consideration in presidents’ Supreme Court appointments.” For instance, when John Adams lost to Thomas Jefferson in the 1800 presidential election, he politicized the court [read more]
July 17, 2020 0

The Machinery of Death: The Federal Death Penalty’s Reinstatement is Arbitrary, Capricious, Illegal, and Cruel

(Source)   Introduction In the early hours of July 14th, 2020, while most people were asleep or just starting their days, the Federal Government executed Daniel Lee Lewis, jumpstarting the return of federal executions. The federal government executed Mr. Lee despite myriad procedural and legal deficiencies. Mr. Lee was executed without a new warrant allowing the execution to occur on July 14th. His warrant listed July 13, 2020 as the execution date. Mr. Lee was strapped to the gurney for over four hours as last-minute legal issues were resolved but was pronounced dead less than an hour after his final legal issue was resolved. The loved ones of the victims publicly opposed his execution and were disregarded in their efforts to witness the execution without compromising their health in the midst of a global pandemic.  In many regards, Mr. Lee was a typical capital defendant. Prior to his conviction, his life was riddled with trauma, mental illness, and interactions with the juvenile detention centers. There was widespread consensus that his co-defendant was more culpable and Mr. Lee maintained his innocence in the murders through his last words. His trial had sentencing problems and concerns about ineffective assistance of counsel. When [read more]
April 24, 2019 0

Supreme Court to Hear Landmark LGBTQ Cases

On Monday April 22, 2019, the Supreme Court of the United States has agreed to hear three cases which seek rulings on whether sexual orientation, transgender status, and transitioning status are protected under Title VII of the Civil Rights Act after years of courts and government agencies taking conflicting positions on this landmark issue. The Supreme Court will likely issue decisions on these hot button cases in 2020 at the beginning of the next presidential election race. Title VII makes it unlawful for an employer to discriminate against any individual “because of” the individual’s sex. While it is understood that the phrase “because of sex” includes gender stereotyping, the law remains in flux as to whether discrimination “because of sex” includes discrimination based on sexual orientation, transgender status, and transitioning status. Numerous courts and federal government agencies have taken opposing stances on this issue. For example, the Department of Justice (“DOJ”) has filed an amicus brief arguing that discrimination based on sexual orientation is not encompassed as discrimination “because of sex” under Title VII. The DOJ’s brief directly conflicts with the Equal Employment Opportunity Commission’s (“EEOC”) stance, as articulated in an amicus brief, which contends that sexual orientation falls squarely [read more]
March 23, 2013 0

Choosing Justices

With three Supreme Court Justices to celebrate their 80th birthdays in the next four years, it’s likely that we’ll see at least a few new appointees in President Obama’s new term. Nate Hoeschen questions the method used when new justices are chosen. [read more]

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