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Commentary and Analysis |
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Why Obama and the Senate Must Ask Specific Questions of Souter's Replacement
by Vikram David Amar
FindLaw columnist and U.C., Davis, law professor Vikram Amar considers both the criteria that should be used in the search for a replacement for Supreme Court Justice David Souter, and the questions President Obama should ask of that person before nominating -- and the Senate, before confirming -- him or her.
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With the Supreme Court Poised to Redefine the Right to Bear Arms, Far-Reaching Questions Loom
by Michael Dorf
FindLaw columnist and Columbia law professor Michael Dorf discusses the issues, and the recent oral argument, in one of the blockbuster cases of this Supreme Court term -- District of Columbia v. Heller. In Heller, as Dorf explains, the Court has the chance to decide the scope of the Second Amendment's right to bear arms in a modern context. Does the right apply only to militia service, or to every individual? Does it apply against the federal government alone, or the states as well? Does it differ with respect to different types of firearms? And can the Court reach a narrow holding in Heller, as it seems Chief Justice Roberts would prefer, or must it reach a broad one?
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 The Docket, Briefs, and Other Information for D.C. v. Heller
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The Long Shadow of Bush v. Gore: Are Its Lessons Relevant to the Decision Whether to Seat Florida and Michigan Democratic Delegates?
by Edward Lazarus
FindLaw columnist, attorney, and author Edward Lazarus weighs in on the lessons we should take from the Bush v. Gore Supreme Court decision, and which way these lessons should cut in the controversy about whether Michigan and Florida delegates will vote at the Democratic Convention. Although the Clinton campaign has argued that Bush v. Gore counsels in favor of counting the delegates' votes, Lazarus argues that the decision's true message concerns integrity, consistency, and setting clear, fair rules ahead of time that are later neutrally and fairly enforced.
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The Court's Opinion in Bush v. Gore
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Does the First Amendment Protect Highly Offensive Speech at a Funeral and Directed at the Deceased?
by Michael Dorf
FindLaw columnist and Columbia law professor Michael Dorf analyzes U.S. Supreme Court precedent to determine whether the Court would likely hold that the First Amendment allows protesters to disrupt funerals by picketing with placards bearing offensive messages. Dorf concludes that the Court would likely uphold as constitutional reasonable restraints on such picketing. This analysis, as Dorf explains, is relevant to the status of a recent $10.9 million federal civil jury award in a suit brought by the father of a Marine killed while serving in Iraq. The father sued picketers at his son's funeral, alleging that they disrupted the funeral by displaying highly offensive signs, and violated defamation law by posting related messages on their website.
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More Supreme Court and Constitutional Law Commentaries
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FindLaw columnist and Hofstra law professor Joanna Grossman discusses an upcoming Supreme Court case that will determine what procedures a plaintiff must follow in order to successfully invoke his or her rights under the Age Discrimination in Employment Act (ADEA). Grossman explains why the issue has divided federal judges, and notes that -- unlike in another recent Supreme Court case involving discrimination -- this time the Solicitor General has sided with the plaintiffs. She contends that the Court, too, should side with the plaintiffs.
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Case Docket for FedEx v. Holowecki
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The Supreme Court and the Butterfly Effect
by Michael Dorf
FindLaw columnist and Columbia law professor Michael Dorf discusses the way the "butterfly effect" may apply to Supreme Court decisions. The phrase "the butterfly effect" describes the way a single incident or action can have a surprisingly great effect over time. Dorf considers some potential past "butterfly effect" cases such as Bush v. Gore, Buckley v. Valeo, and Roe v. Wade. In addition, he describes two cases the Court will decide in the Term that begins this October that may also create a "butterfly effect"; one concerns the controversial Military Commissions Act and whether it infringes detainees' habeas corpus rights, and another pertains to gun control laws.
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More Supreme Court and Constitutional Law Commentaries
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How An Upcoming Supreme Court Case Illustrates and Continues the Court's Current Interest in "Jurisdictional" Questions
by Vikram David Amar
FindLaw columnist and U.C. Davis law professor Vikram Amar discusses an upcoming Supreme Court case, John R. Sand & Gravel Co. v. United States. The case will require the Court to decide whether the statute of limitations period governing certain damage suits against the United States is "jurisdictional" -- that is, whether it relates to the merits of the case or to the court's power to hear it. Amar puts the case in the context of a spate of other recent decisions in which the Court has also opted to confront the jurisdiction/merits divide, but is skeptical as to whether, given the particularities of each such decision, the Court will ever be able to set forth a general theory as to jurisdictional questions.
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Did the Six Supreme Court Justices Who Chose to Attend the 54th Annual "Red Mass" Exercise Bad Judgment?
by Marci Hamilton
FindLaw columnist and Cardozo law professor Marci Hamilton discusses the recent decision by six Supreme Court Justices to attend the annual Catholic "Red Mass." Hamilton contends that the Justices' decision to attend the Mass is highly questionable in light of their ethical obligation to avoid not only impropriety, but also the appearance of impropriety, and the fact that the homily that was delivered alluded to the Court's positions on issues such as abortion that frequently come before the Court. Hamilton also considers the charge that some Justices' Catholic religious beliefs may have altered the outcome of a recent abortion decision, Gonzales v. Carhart, especially since the decision departed from past precedent and, she contends, accepted some highly dubious legislative findings at face value.
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More Supreme Court and Constitutional Law Commentaries
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