Precedent, Reliance, and Dobbs
Vol. 136 No. 7
Abstract Our system of stare decisis enables and encourages people to rely on judicial decisions to form expectations about their legal rights and duties...
Supreme Court
Constitutional Remedies: In One Era and Out the Other
Vol. 136 No. 5
“It is a settled and invariable principle,” Chief Justice Marshall once wrote, “that every right, when withheld, must have a remedy.” Not quite. Although some view the idea of a substantive constitutional right without a remedy as oxymoronic, rights to remedies have always had a precarious constitutional status, which the Supreme Court has lately subjected to multifaceted subversion. . . .
Justice Breyer: The Court’s Last Natural Lawyer?
Vol. 136 No. 5
Natural law “still spooks many constitutional lawyers.” Justice Scalia, for example, was once asked: “Does natural law have a place in interpreting the Constitution?”...
Democratic Justice: Felix Frankfurter, The Supreme Court, and the Making of the Liberal Establishment
By Brad Snyder. New York, N.Y.: W.W. Norton & Company. 2022. Pp. 979. $45.00.
Vol. 136 No. 4
A Plea for Affirmative Action
Vol. 136 No. 3
Affirmative action in the form of race-conscious admissions is being legally challenged by a conservative activist organization . During the Supreme Court’s 2022 October...
Personal Precedent at the Supreme Court
Vol. 136 No. 3
Personal precedent is a judge’s presumptive adherence to her own previously expressed views of the law. This Essay shows that personal precedent both does...
Complicit Bias and the Supreme Court
Response to Race in the Roberts Court
Vol. 136 No. 2
The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes. Three generations of imbeciles are enough. Justice Oliver Wendell...
Discrimination Blocking: A New Compelling Interest for Affirmative Action
Vol. 136 No. 2
In 1951, a promising young student submitted his application to the School of Theology at Boston University. His application was compelling but contained a...
The Common Law as Statutory Backdrop
Vol. 136 No. 2
This Article provides the first empirical and doctrinal analysis of how the modern Supreme Court uses the common law to determine statutory meaning, based on a study of 602 statutory cases decided during the Roberts Court’s first fourteen and a half Terms.
Racism, Abolition, and Historical Resemblance
Forum response to Professor Bridges' Foreword
Response to Race in the Roberts Court
Vol. 136 No. 1