Abstract The U.S. Supreme Court now has vast control over its agenda: It has the power to pick and choose not only what cases it will hear through writs of certiorari, but also what specific legal questions within those cases it will consider. As a result, the Court never revisits a precedent unless it has made a prior, discretionary choice to put the viability of a precedent on its agenda. For...
American Public Law Revolution
Abstract The Supreme Court has birthed a public law revolution. This revolution should not be known as a constitutional revolution because it is bigger than constitutional law—it covers statutory and administrative law as well. This revolution has been powered not by social movements, but by an interpretive philosophy known as originalism. Originalism has been deeply misunderstood by its critics...
The Public Opinion Roots of Constitutional Norms
Abstract An important conversation is happening in U.S. politics about the appropriate role of the U.S. Supreme Court and about the Court’s increasing involvement in highly politicized, controversial policy areas. Many scholars agree that the Court increasingly engages with important national policy issues. What happens when the Court addresses significant policy questions and, equally...
The Roberts Court's Judicial Zealotry
Abstract The Roberts Court’s embrace of the conservative Christian agenda—from religious liberty to the erosion of the separation of church and state—has been well documented. This Article contributes to this growing body of scholarship by coining and developing the concept of judicial zealotry: an approach to judging, precedent, and the Court’s self-conception that mirrors the moral and...
Anti-Oligarchy, Anti-Authoritarianism, The Constitution, and the Court
Abstract In the 1930s, like today, our nation faced a crisis of oligarchy: too much wealth and political power concentrated in too few hands. Like today’s liberals and progressives, the New Dealers aimed to enact social and economic reforms that would ensure a much broader distribution of wealth and power, but they faced a hostile, right-wing Supreme Court that would certainly thwart such reforms...
Reforming the Court?
Autocratic Judging
Abstract Autocratic regimes, now governing 70 percent of the world’s population, often come into power by democratic means but then use their authority to undermine the very institutions that sustain democracies, including representation and participation in elections, protection of minority rights, the rule of law, and checks and balances. This erosion of structural guardrails is known as...
Episode 10.2 - The Autocratic Legal Playbook with Professor Scott Cummings
In this episode we are joined by Professor Scott Cummings, Professor of Law and the Robert Henigson Professor of Legal Ethics at UCLA School of Law to discuss his forthcoming article "The Autocratic Legal Playbook" that outlines the blueprint autocrats have used throughout history to dismantle democracy through seemingly lawful procedures.