Constitutional Conversations

Constitutional Conversations

Discussions of the U.S. Constitution’s

Meaning and Political Significance

Snapchat Free Speech on (or off) Campus

Monday, September 19, 11:30 am to 1 pm

• Can a student who is not awarded a campus recognition for exemplary citizenship be disciplined under campus rules because afterwards the student made obscene gestures and comments about that campus in a friends-only Snapchat post (that was later deleted after an apology) while sitting in an off-campus coffee shop? Or does the First Amendment insulate the student from school discipline?
• Suggested reading: George Will, “Now We See the Wisdom of the High Court’s ‘Vulgar Cheerleader’ ruling,” Washington Post (op-ed, July 27, 2022). 

Constitutional Flux of U.S. Supreme Court Precedents in Culture Wars

Monday, September 26, 11: 30 am to 1 pm

• Long ago Justice William O. Douglas used a “constitutional flux” principle to explain why the doctrine of stare decisis does not prevent newly appointed judges from coalescing into a majority bloc that favors re-visiting past binding precedents and reversing them at a higher rate than in the past. Is Douglas correct when considering the recent Supreme Court Term that overturned many long-standing precedents in controversial culture war conflicts, such as abortion, and other areas of constitutional freedom?
• Suggested reading: William Douglas, “Stare Decisis,” 49 Columbia Law Review 735, 736–737 (1949).

Is Justice Thomas Opinion in Dobbs a “Concurrence from Crazy Town?”

Monday October 3, 11:30 am to 1 pm

• Recently journalist critic Ruth Marcus speculated if Justice Clarence Thomas’ opinion in Dobbs v. Jackson Women’s Health Organization can be called the “concurrence from crazytown” after questioning the constitutional validity of a longstanding series of privacy precedents that protect contraception, private sexual conduct, and same-sex marriage under the Fourteenth Amendment’s substantive due process doctrine. How likely is it that Thomas’ viewpoint will command a majority in future cases involving due process privacy rights?
• Suggested reading: Ruth Marcus, “Thomas Remains An Outlier in Targeting Other Privacy Rights: But For How Long?,” Washington Post (June 26, 2022).

Constitutional Hardball and Political Extremism in Supreme Court Appointments to the Bench

Wednesday, October 19, 11:30 am to 1 pm

• Once, not too long ago, the U.S. Senate rejected Robert Bork’s appointment to the U.S. Supreme Court, in part because he was politically characterized as “out of the mainstream’ in opposing abortion rights as a matter of constitutional law.  His 1987 confirmation battle underscored the political influence of organized interests opposing his nomination by President Reagan and ushered in an era of “constitutional hardball politics” of federal judicial selection; as well as raising another question of what in American politics is considered “out of the mainstream,” or too extreme for responsible or effective governance. What lessons can we learn from Bork’s defeated confirmation in a political time of growing extremism?
• Suggested reading: Christopher P. Banks and David M. O’Brien, The Judicial Process: Law, Courts, and Judicial Politics 2nd ed. (West Academic, 2020)
• “Contemporary  Controversies over Courts: The (Constitutional) Hardball Politics of Federal Judicial Selection,” pp. 183-187
• “The Battle over Robert Bork’s 1987 Nomination,” pp. 188-191.

The Shadow Docket and the Myth of Judicial Neutrality

Wednesday, November 16, 11:30 am to 1 pm

• Critics of the Roberts Court accuse the U.S. Supreme Court of manipulating its non-merits’ review of emergency petitions by transforming it into “shadow docket,” or a stealth abuse of the rules of procedure that is used to achieve partisan policy results. Shadow docket rulings are criticized because they increasingly reverse lower court opinions without fully considering their legal merits in key areas of constitutional law and public policy, including voting rights and election law, immigration border control, vaccine mandates, death penalty appeals, among others. How does the judicial interpretation of procedural standards and rules implicate substantive constitutional meaning in key areas of social policy? Are the critics correct in assailing the Court for abusing procedural rules for partisan gain?
• Suggested reading: James Romoser, “Symposium: Shining a Light on the Shadow Docket,” Scotusblog (October 22, 2022).