Volume 2023, No. 2 (Symposium)

PDF link Table of Contents


PDF link Foreword I: Controlling the Supreme Court — Is There a Future for American Law?

Bruce Ledewitz

I was privileged to give the opening address of the 2022 Wisconsin Law Review Symposium, titled “Controlling the Supreme Court: Now and ‘far into the future.’” What follows is the talk I delivered at the opening session of the Symposium.

Something has happened. Something important. That is why we are here at this Symposium. But what exactly has changed? This is my answer.

PDF link Foreword II: To Reform the Court, We Have to Recognize It Isn’t One

Eric J. Segall

Before we can resolve a difficult and complex problem, we first must identify the issue succinctly and accurately. The Supreme Court of the United States is a broken and dangerous institution due to a perfect storm of factors that make it a unique hybrid, political-legal body which exercises far too much power and influence over our country and may well be the most powerful judicial institution in world history. The questions raised by this Symposium are whether it is desirable or possible to reform the Supreme Court, and if so, how. To help put that topic into perspective, this Essay sets forth where I think we should start with these complicated and controversial questions.

PDF link Religious Liberty For All? A Religious Right to Abortion

Caroline Mala Corbin

One of the most notable trends in recent Supreme Court jurisprudence is the expansion of religious liberty rights. The right to practice one’s faith is a core feature of a democracy, but the Supreme Court has privileged that right over other equally critical ones, most notably the right to equal treatment. Thus, for example, the Court has held that for-profit companies have a religious right to exclude contraception from their health insurance plans and that nonprofit charities have a religious right to refuse to place foster children with same-sex couples. In these and similar cases, the religious beliefs aligned with conservative Christianity. But what if the religious liberty claim were not brought by a conservative Christian but by a progressive Christian, or not a Christian at all, and the religious belief collided with traditional Christian ideology? More precisely, what might be the result of a religious liberty challenge to an abortion ban? This question is not farfetched, as Jewish and other faith groups in multiple states are challenging restrictive abortion laws based upon religious freedom. These plaintiffs argue that their state’s abortion ban impedes their ability to live out the commandments of their faith. Would the Supreme Court retrench its religious liberty doctrine in the face of these lawsuits? Or would expansive religious liberty exemptions be available for progressive views as well as conservative ones? Or neither? This Essay examines that question, as well as the implications of denying the progressive religious liberty claim.

PDF link What It Takes to Curb the Court

Barry Friedman

It is that time again, as it seems to be every several generations, when Court-curbing is in the air. And yet, this period of Court-curbing is importantly different from prior times in which Court-curbing was successful. Start with this obvious point: in prior instances in which attacks on the Court succeeded in some fashion, the challengers had the political muscle to threaten the Court. Now, to be blunt, they don’t have the votes. For that reason alone, much of today’s talk of curbing the Court is overly optimistic at best. The central question I pursue here is what it would take for the Court to be in actual jeopardy? Drawing from history, I derive a simple set of requirements. There must be a well-defined crisis, as opposed to diffuse frustration and dread about the Court. There also must be a focused, close fit between the nature of the crisis and the proposed remedy. Both of these are necessary to get public support behind a Court-curbing measure. And third, of course, is the votes: support in the political branches is essential to take action against the Court, for the public—no matter how discontent it might be—cannot punish the Court alone.

PDF link The Court and the Constitution

Lori A. Ringhand

Americans do not want the Supreme Court to be just another political institution. This is apparent in the lukewarm response to even modest proposals to change the structure of the Court, such as limiting the terms of its justices or changing its size. The partisan overlay of this reaction is obvious, but the purpose of this Essay is to highlight an additional barrier to change: the dominance of originalist rhetoric in American constitutional discourse. The rhetoric of originalism has successfully tapped into many Americans’ deeply held expectations about the role of the Court and the Constitution as a unique and law-based actor. In doing so, it has crowded out alternative and more realistic stories of the value the Supreme Court actually adds to our system of self-government, making it difficult for proposals to change the Court to get traction in the public imagination. But the Constitution itself positions the Court within our system of checks and balances, not outside it. Reminding Americans of the ways the Constitution balances judicial independence and judicial accountability to constrain judicial overreach enables Supreme Court-reform advocates to reclaim the narrative— and, perhaps, the initiative—in the ongoing American debate about the Court and Constitution’s role in our system of self-government.

PDF link The Case for Expanding the Anticanon of the Constitution

Ilya Somin

The “anticanon” of constitutional law is an underappreciated constraint on judicial discretion. Some past decisions are so reviled that no judge can issue analogous rulings today, without suffering massive damage to their reputation. This Essay argues for expanding the anti-canon and proposes three worthy new candidates: The Chinese Exclusion Case, Euclid v. Ambler Realty, and Berman v. Parker. The three rulings all share in spades the main characteristics of other anti-canonical decisions: (1) terrible legal reasoning, (2) enormously harmful real-world effects, and (3) facilitating racial and ethnic discrimination and oppression.

PDF link Supreme Myth Busting: How the Supreme Court Has Busted its Own Myths

Michael J. Gerhardt

This Essay challenges various myths of the Supreme Court, including the myth of the Supreme Court as the only branch in the federal government capable of neutral, non-partisan, juridical interpretations of the Constitution. Through various means, I show how the Supreme Court fails to live up to that myth, especially in its failure to abide by the same code of ethics that other judges follow. The Court’s excuse is that it is not like other courts, but, if we take that excuse at face value, then there is more, not less, reason to require the Supreme Court adhere to the same ethical standards every other judge must follow. If the Court is just another court, it should of course be constrained like other courts, including through a code of ethics. But, if it is not like other courts, a code of ethics is even more imperative to ensure the justices from lapsing into just another political venue. In addition to highlighting how the Court’s recent decisions undercut its claims of being a court rather than just another political branch, I use several case studies to show how the Court needs to adhere to a code of ethics to ensure it does not function as presidents and senators would like it to function as an extension of their political powers.

PDF link Fixing the Confirmation Process, Or Fiddling While Rome Burns

Caroline Fredrickson

This Symposium was designed to address the question of “controlling the Court through a broken confirmation process: ‘how to fix it going forward?’” But before we can answer that question, we must answer: What is the problem to be addressed? Do we need to fix the confirmation process because it enables troubling outcomes or because the process itself raises concerns? My Essay will address both questions, suggesting that there is both a substantive problem and a normative one. Each of these questions could elicit different answers. The normative problem is that the confirmation process itself undermines rule of law and an independent judiciary (or at least its appearance). The substantive problem is that the Court’s rulings are wrong, out of step with broadly held public views, and dangerous to democracy itself. I argue it is misguided to think we can defer fixing the substantive problem and address only the normative problem initially. This Court poses a direct threat to our democracy and thus we need an immediate response to that existential danger.

PDF link The October 2021 Term and the Challenge to Progressive Constitutional Theory

J. Joel Alicea

This Essay examines the ways in which the Supreme Court’s October 2021 Term challenges core theoretical commitments of progressive constitutional theory. Progressive constitutional theory originated in the progressive political theory of the late nineteenth and early twentieth centuries. Accordingly, progressive constitutional theory shares progressive political theory’s commitments to two propositions: rationalism and individualism. These commitments lead to an understanding of history as moving in a particular direction—one that is generally in line with progressive ideology. The originalist and traditionalist approaches of the Court’s October 2021 decisions call into question the progressive confidence in the direction of history while simultaneously rejecting the rationalistic and individualistic premises of progressivism. This helps explain why many progressive constitutional theorists have found the Court’s decisions so disorienting and confounding. The October 2021 Term challenged—even though it did not definitively refute—the progressive narrative of constitutional redemption through history. The implications of the Court’s decisions will reverberate through American constitutional theory for decades to come.

PDF link A Normal Supreme Court

Eugene Volokh

There is little new under the sun, especially when it comes to the Court and its critics. People have long argued that the Court is out of control; but in our system, rightly or wrongly, we have deliberately insulated the Court from certain kinds of control. As a result, the justices make decisions based on their own judgments, however controversial, about how to interpret the Constitution. This is just the normal operation of our Supreme Court, for better or worse. All that’s changing is which particular decisions are being made, and which particular precedents are being reversed.