Federalism in the Taft Court Era: Can It Be “Revived”?

Total Page:16

File Type:pdf, Size:1020Kb

Federalism in the Taft Court Era: Can It Be “Revived”? POST.DOC 05/17/02 4:44 PM FEDERALISM IN THE TAFT COURT ERA: CAN IT BE “REVIVED”? ROBERT POST† ABSTRACT This Article analyzes the Supreme Court’s view of federalism during the decade of the 1920s. It offers a detailed discussion of four jurisprudential areas: congressional power, dormant Commerce Clause doctrine, intergovernmental tax immunity, and judicial cen- tralization through the enforcement of federal common law and con- stitutional rights. The resurgent federalism of the contemporary Court is typically characterized as “reviving” pre–New Deal principles. This Article concludes, however, that any such revival is highly implausi- ble. It offers four reasons for this conclusion. First, the pre–New Deal Court conceived federalism in terms of the ideal of dual sovereignty, which imagined that the federal government and the states regulated distinct and exclusive spheres of social and economic life. But because the national market had by the twentieth century become thoroughly integrated, this ideal produced doctrinal incoherence in the areas of both intergovernmental tax immunity and the dormant Commerce Clause. The application of the ideal of dual sovereignty also significantly undercut state power, because it invited the pre–New Deal Court to prohibit states from regulating the exclu- sively federal area of interstate commerce. For these reasons the mod- ern Court has abandoned the ideal of dual sovereignty in its doctrine of intergovernmental tax immunity and the dormant Commerce Clause. Contemporary opinions in these areas imagine federal and state interests as intermingled and overlapping, rather than as sepa- Copyright © 2002 by Robert Post. † Alexander F. and May T. Morrison Professor of Law, School of Law (Boalt Hall), Uni- versity of California at Berkeley. This Article was presented as the 2001 Brainerd Currie Lec- ture at Duke University School of Law on March 26, 2001. Many of the sources cited within were obtained by the author from archival records. The Duke Law Journal was thus unable to independently verify this authority. Unless otherwise noted, these sources are on file with the author. POST.DOC 05/17/02 4:44 PM 1514 DUKE LAW JOURNAL [Vol. 51:1513 rated into discrete spheres. The modern view actually offers more protection for state regulations than did the ideal of dual sovereignty espoused by the pre–New Deal Court. Second, the pre–New Deal Court understood itself as a common law court authorized to articulate the deepest experiences and values of the American people. This authority transcended the distinction between federal and state power, which is why the pre–New Deal Court never conceived itself as an agent of a federal government that was potentially in tension with state sovereignty. The Court never un- derstood the centralization resulting from judicial decisionmaking as a federalism issue. The Court freely regulated intimate areas of state life through the promulgation of general common law. The pre–New Deal Court’s common law authority was regarded as even more fun- damental than Congress’s claim to articulate the national will. The triumph of Holmesian positivism in Erie Railroad Co. v. Tompkins transformed the Court into an instrument of specifically federal law. The federalism implications of judicial decisionmaking in the areas of common law and constitutional rights were thus made manifest for the first time. The Court’s authority to impose structural limitations on congressional power was also profoundly altered. Third, the pre–New Deal Court, like the country generally, re- garded the federal government as a potentially distant, bureaucratic, and oppressive institution. States were by contrast conceptualized as sites of democratic self-government. Federalism was typically con- ceived as the problem of “reconciling centralization with self- government.” Thus federal and state regulations, even of the same subject matter, were not regarded as equivalent. State regulation was self-chosen; federal regulation was potentially coercive. This view of the federal government was pushed to the margins of American politi- cal culture when the crisis of the New Deal legitimated the national government’s authority to speak as the genuine representative of an authentic national democratic will. Combined with the demise of the Court’s common law authority, this transformation of Congress’s le- gitimacy undercut the Court’s ability to second-guess Congress’s vi- sion of national priorities when reviewing the limits of congressional power. Fourth, the pre–New Deal Court conceived structure and rights as complementary and mutually dependent concepts. The Court defined individual rights in ways designed to serve structural principles, like the integration of the national market. And it defined structural prin- ciples, like the limits of congressional power, in terms of the individ- POST.DOC 05/17/02 4:44 PM 2002] FEDERALISM IN THE TAFT COURT ERA 1515 ual rights affected by federal legislation. Because the Lochnerism of the pre–New Deal Court inclined it to protect freedom of contract, it sought to impose limits on congressional power that were highly sen- sitive to the nature of the economic transactions regulated by federal legislation. Modern constitutional thinking, by contrast, sharply dis- tinguishes structure from rights, and it does not seek to protect the same kind of economic rights as did pre–New Deal Lochnerism. The “revival” of pre–New Deal federalism, in short, would require the contemporary Court to restore an ideal of dual sovereignty that in important doctrinal areas is not only incoherent, but deeply antago- nistic to state power; to reassert its authority as a common law court; to resurrect an image of Congress as a national legislature unsup- ported by a genuine national democratic will; and to dismantle the contemporary distinction between structure and rights so as to limit congressional power in ways designed to protect rights of substantive due process. TABLE OF CONTENTS Introduction...........................................................................................1516 I. Federalism and the Impact of World War I: National Centralization and National Ambivalence..............................1519 II. Dual Sovereignty and the Doctrine of Intergovernmental Tax Immunity .............................................................................1526 III. Federalism and the Scope of Congressional Power ...............1537 A. Congressional Power and the Commerce Clause ...........1546 B. Congressional Power and the Logic of Dual Sovereignty ..........................................................................1558 1. Dual Sovereignty and the Form of Congressional Power..............................................................................1562 2. Dual Sovereignty and the Substance of Congressional Legislation............................................1568 C. Dual Sovereignty and the Role of the Court...................1576 IV. Federalism and National Judicial Power.................................1580 A. National Judicial Power, Structure, and Individual Constitutional Rights..........................................................1580 B. Federal Common Law and Judicial Centralization ........1589 POST.DOC 05/17/02 4:44 PM 1516 DUKE LAW JOURNAL [Vol. 51:1513 V. Federalism and the Dormant Commerce Clause ...................1605 A. The Dormant Commerce Clause and Dual Sovereignty ..........................................................................1606 B. Dual Sovereignty and the Boundary Between Interstate and Intrastate Commerce.................................1613 C. Direct and Indirect Burdens on Interstate Commerce............................................................................1618 D. The Dormant Commerce Clause and Economic Rights ...................................................................................1630 Concluding Thoughts ...........................................................................1634 INTRODUCTION After decades of dormancy, federalism has once again become a controversial and consequential constitutional issue. Led by a Su- preme Court whose “activism” is said to be directed at “reviving the structural guarantees of dual sovereignty,”1 the current resurgence of federalism is characterized by the metaphor of resurrection.2 The pressing question seems to be whether the contemporary Court ought to resuscitate limitations on federal power that have remained quies- cent since before the New Deal. If modern questions of federalism are to be understood as a re- vival of past understandings, however, it would be useful to explore the actual nature of those understandings. A good place to begin is 1. Brzonkala v. Va. Polytechnic Inst. & State Univ., 169 F.3d 820, 893 (4th Cir. 1999) (en banc) (Wilkinson, C.J., concurring), aff’d sub nom. United States v. Morrison, 529 U.S. 598 (2000). 2. See Jeffrey Rosen, Getting over Our Depression, N.Y. TIMES, Mar. 11, 2001, at 16 (re- viewing G. EDWARD WHITE, THE CONSTITUTION AND THE NEW DEAL (2001)): [D]uring the past six years, the court has struck down all or part of more than two dozen federal laws, on the grounds that Congress or the president had encroached on states’ rights or the separation of powers. The next four years could see a redefinition of the scope of federal power through the resurrection of an aggressive role for judges in policing boundaries of national government that had been dormant since the 1930’s. Whether you think this is a principled exercise in constitutional
Recommended publications
  • President Roosevelt and the Supreme Court Bill of 1937
    President Roosevelt and the Supreme Court bill of 1937 Item Type text; Thesis-Reproduction (electronic) Authors Hoffman, Ralph Nicholas, 1930- Publisher The University of Arizona. Rights Copyright © is held by the author. Digital access to this material is made possible by the University Libraries, University of Arizona. Further transmission, reproduction or presentation (such as public display or performance) of protected items is prohibited except with permission of the author. Download date 26/09/2021 09:02:55 Link to Item http://hdl.handle.net/10150/319079 PRESIDENT ROOSEVELT AND THE SUPREME COURT BILL OF 1937 by Ralph Nicholas Hoffman, Jr. A Thesis submitted to the faculty of the Department of History and Political Science in partial fulfillment of the requirements for the degree of MASTER OF ARTS in the Graduate College, University of Arizona 1954 This thesis has been submitted in partial fulfillment of requirements for an advanced degree at the University of Arizona and is deposited in the Library to be made avail­ able to borrowers under rules of the Library. Brief quotations from this thesis are allowable without spec­ ial permission, provided that accurate acknowledgment of source is made. Requests for permission for extended quotation from or reproduction of this manuscript in whole or in part may be granted by the head of the major department or the dean of the Graduate College when in their judgment the proposed use of the material is in the interests of scholarship. In all other in­ stances, however, permission must be obtained from the author. SIGNED: TABLE.' OF.GOWTENTS Chapter / . Page Ic PHEYIOUS CHALLENGES TO THE JODlClMXo , V .
    [Show full text]
  • Edward Douglas White: Frame for a Portrait Paul R
    Louisiana Law Review Volume 43 | Number 4 Symposium: Maritime Personal Injury March 1983 Edward Douglas White: Frame for a Portrait Paul R. Baier Louisiana State University Law Center Repository Citation Paul R. Baier, Edward Douglas White: Frame for a Portrait, 43 La. L. Rev. (1983) Available at: https://digitalcommons.law.lsu.edu/lalrev/vol43/iss4/8 This Article is brought to you for free and open access by the Law Reviews and Journals at LSU Law Digital Commons. It has been accepted for inclusion in Louisiana Law Review by an authorized editor of LSU Law Digital Commons. For more information, please contact [email protected]. V ( TI DEDICATION OF PORTRAIT EDWARD DOUGLASS WHITE: FRAME FOR A PORTRAIT* Oration at the unveiling of the Rosenthal portrait of E. D. White, before the Louisiana Supreme Court, October 29, 1982. Paul R. Baier** Royal Street fluttered with flags, we are told, when they unveiled the statue of Edward Douglass White, in the heart of old New Orleans, in 1926. Confederate Veterans, still wearing the gray of '61, stood about the scaffolding. Above them rose Mr. Baker's great bronze statue of E. D. White, heroic in size, draped in the national flag. Somewhere in the crowd a band played old Southern airs, soft and sweet in the April sunshine. It was an impressive occasion, reported The Times-Picayune1 notable because so many venerable men and women had gathered to pay tribute to a man whose career brings honor to Louisiana and to the nation. Fifty years separate us from that occasion, sixty from White's death.
    [Show full text]
  • Journal of Supreme Court History
    Journal of Supreme Court History THE SUPREME COURT HISTORICAL SOCIETY THURGOOD MARSHALL Associate Justice (1967-1991) Journal of Supreme Court History PUBLICATIONS COMMITTEE E. Barrett Prettyman, Jr. Chairman Donald B. Ayer Louis R. Cohen Charles Cooper Kenneth S. Geller James J. Kilpatrick Melvin I. Urofsky BOARD OF EDITORS Melvin I. Urofsky, Chairman Herman Belz Craig Joyce David O'Brien David J. Bodenhamer Laura Kalman Michael Parrish Kermit Hall Maeva Marcus Philippa Strum MANAGING EDITOR Clare Cushman CONSULTING EDITORS Kathleen Shurtleff Patricia R. Evans James J. Kilpatrick Jennifer M. Lowe David T. Pride Supreme Court Historical Society Board of Trustees Honorary Chairman William H. Rehnquist Honorary Trustees Harry A. Blackmun Lewis F. Powell, Jr. Byron R. White Chairman President DwightD.Opperman Leon Silverman Vice Presidents VincentC. Burke,Jr. Frank C. Jones E. Barrett Prettyman, Jr. Secretary Treasurer Virginia Warren Daly Sheldon S. Cohen Trustees George Adams Frank B. Gilbert Stephen W. Nealon HennanBelz Dorothy Tapper Goldman Gordon O. Pehrson Barbara A. Black John D. Gordan III Leon Polsky Hugo L. Black, J r. William T. Gossett Charles B. Renfrew Vera Brown Geoffrey C. Hazard, Jr. William Bradford Reynolds Wade Burger Judith Richards Hope John R. Risher, Jr. Patricia Dwinnell Butler William E. Jackson Harvey Rishikof Andrew M. Coats Rob M. Jones William P. Rogers William T. Coleman,1r. James 1. Kilpatrick Jonathan C. Rose F. Elwood Davis Peter A. Knowles Jerold S. Solovy George Didden IIJ Harvey C. Koch Kenneth Starr Charlton Dietz Jerome B. Libin Cathleen Douglas Stone John T. Dolan Maureen F. Mahoney Agnes N. Williams James Duff Howard T.
    [Show full text]
  • Master Pages
    Master Pages 15 • Be Careful With My Court Legitimacy, Public Opinion, and the Chief Justices SHAWN C. FETTIG AND SARA C. BENESH On June 28, 2012, the Supreme Court announced its decision in National Federation of Independent Business et al. v. Sebelius, Secretary of Health and Human Services et al., upholding the Affordable Care Act by a vote of 5-4. Chief Justice John Roberts read his majority opinion. Almost immediately, political scientists and pundits alike began dissecting the opinion and the reason for Chief Justice Roberts’s vote. Public approval of the Court, as noted by the media, was at its lowest levels ever as the Court prepared to hear the case.1 Many argued that the Court’s legitimacy weighed heavily on Roberts as he considered the case, with CBS News reporting that Roberts, as chief justice, “is keenly aware of his leadership role on the court, and he also is sensitive to how the court is perceived by the public.”2 “To be sure,” wrote New York Times reporter Adam Liptak, “the chief justice considers himself the custodian of the Supreme Court’s prestige, authority, and le- gitimacy, and he is often its voice in major cases.”3 He reprised the role in King v. Burwell, the 6- 3 decision announced almost exactly one year later upholding the subsidies associated with the health care exchanges.4 There, Rosen argued, the chief used the case’s reason to confer legitimacy. Judicial restraint, Rosen suggests, drove the chief’s decision, for “In a polarized age, it is important for the Supreme Court to maintain its institutional legiti- macy by deferring to the political branches.”5 We know that the Court is influenced by public opinion and the Court’s decisions are often in line with it.6 We also know that judicial legitimacy is fairly widespread and relatively stable,7 and that it is drawn from diffuse 374 Ward.indd 374 2/12/2016 2:30:33 PM Master Pages Be Careful With My Court • 375 support, a “reservoir of good will,”8 that is resilient and resistant to signifi- cant fluctuation.
    [Show full text]
  • The Forging of Judicial Autonomy: Political Entrepreneurship and the Reforms of William Howard Taft
    The Forging of Judicial Autonomy: Political Entrepreneurship and the Reforms of William Howard Taft Justin Crowe Princeton University In his first four years as Chief Justice of the United States, William Howard Taft convinced Congress to pass two reform bills that substantially enhanced the power of the federal courts, the Supreme Court, and the Chief Justice. In this article, I explore the causes and the consequences of those reforms. I detail how Taft’s political entrepreneurship— specifically the building of reputations, the cultivation of networks, and the pursuit of change through measured action—was instrumental in forging judicial autonomy and, subsequently, how that autonomy was employed to introduce judicial bureaucracy. By asking both how judicial reform was accomplished and what judicial reform accomplished, I offer an analytically grounded and historically rich account of the politics surrounding two of the most substantively important legislative actions relating to the federal judiciary in American history. In the process, I also draw attention to a largely neglected story of political development: the politics surrounding the building of the federal judiciary as an independent and autonomous institution of governance in American politics. “The spirit of speed and efficiency lurking in the corpulent powerful than they had previously been. Thus, it does form of an ex-President of the United States has entered the not seem an exaggeration to say that, in only nine years Court and broken up its old lethargy.” on the Court, Taft had surpassed even his own wish of —Herbert Little in The American Mercury (1928) “reasonable betterment by practical means” (Taft hen, after an extensive career in politics, 1916–17, 10).
    [Show full text]
  • The Ratings Game: Factors That Influence Judicial Reputation William G
    Marquette Law Review Volume 79 Article 2 Issue 2 Winter 1996 The Ratings Game: Factors That Influence Judicial Reputation William G. Ross Follow this and additional works at: http://scholarship.law.marquette.edu/mulr Part of the Law Commons Repository Citation William G. Ross, The Ratings Game: Factors That Influence Judicial Reputation, 79 Marq. L. Rev. 401 (1996). Available at: http://scholarship.law.marquette.edu/mulr/vol79/iss2/2 This Article is brought to you for free and open access by the Journals at Marquette Law Scholarly Commons. It has been accepted for inclusion in Marquette Law Review by an authorized administrator of Marquette Law Scholarly Commons. For more information, please contact [email protected]. MARQUETTE LAW REVIEW Volume 79 Winter 1996 Number 2 THE RATINGS GAME: FACTORS THAT INFLUENCE JUDICIAL REPUTATION WILLIAM G. ROSS* INTRODUCTION The rating of United States Supreme Court justices is an increasingly favorite pastime among scholars, judges, journalists, students, and practicing attorneys. Once the domain of a few pundits who made personal lists of the all-time "greatest" justices,' surveys are becoming more formal and are embracing more participants. The most extensive * Professor of Law, Cumberland School of Law of Samford University; A.B., Stanford, 1976; J.D., Harvard, 1979. The author was one of the scholars polled in the 1993 Blaustein- Mersky survey that is discussed in this Article. The author thanks Professor Roy M. Mersky of the University of Texas for advice and encouragement in connection with this Article and for his permission to publish the results of that survey as an appendix to this Article.
    [Show full text]
  • The Supreme Court Opinion As Institutional Practice: Dissent, Legal Scholarship, and Decisionmaking in the Taft Court
    The Supreme Court Opinion as Institutional Practice: Dissent, Legal Scholarship, and Decisionmaking in the Taft Court Robert Postt In 1921, when William Howard Taft became Chief Justice, the Supreme Court did not occupy the serene and imposing marble building that has since become its contemporary icon.1 Its courtroom was instead located in the old Senate Chamber, whose intimate, elegant surroundings echoed with the debates of Webster, Clay, and Calhoun.2 Its administrative staff and offices were scattered haphazardly and inefficiently throughout the Capitol.3 It was Taft who, with great skill and patience, t I am very grateful for the advice and insight of friends and colleagues. I would particularly like to thank Paul Carrington, Jesse Choper, Meir Dan- Cohen, Mel Eisenberg, Dan Farber, Phil Frickey, Barry Friedman, Howard Gillman, Jim Gordley, Morton Horowitz, Laura Kalman, Robert Kagan, Larry Kramer, David Lieberman, Sandy Levinson, David and Miranda McGowan, Paul Mishkin, William Nelson, Judith Resnik, Dan Rubinfeld, Reva Siegel, and Mark Tushnet. I am especially grateful for the stalwart and heroic efforts of Linda Lye, Cathy Shuck, and Sambhav Nott Sankar. Copyright 2001 by Robert Post. Many of the materials cited and quoted herein are archival and on file with the author. The Minnesota Law Review was thus unable to independ- ently verify this authority. Unless otherwise noted, figures are based on the independent research of the author or annual reports of the Attorney General of the United States. 1. Writing in 1984, Margaret P. Lord noted that to the Justices who first moved into the contemporary Supreme Court building in 1935, "the spaces were too huge, the corridors were too long and cold, the rooms too formal." Margaret P.
    [Show full text]
  • Prohibition in the Taft Court Era
    William & Mary Law Review Volume 48 (2006-2007) Issue 1 Article 2 October 2006 Federalism, Positive Law, and the Emergence of the American Administrative State: Prohibition in the Taft Court Era Robert Post Follow this and additional works at: https://scholarship.law.wm.edu/wmlr Part of the Constitutional Law Commons Repository Citation Robert Post, Federalism, Positive Law, and the Emergence of the American Administrative State: Prohibition in the Taft Court Era, 48 Wm. & Mary L. Rev. 1 (2006), https://scholarship.law.wm.edu/wmlr/vol48/iss1/2 Copyright c 2006 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/wmlr William and Mary Law Review VOLUME 48 No.1, 2006 FEDERALISM, POSITIVE LAW, AND THE EMERGENCE OF THE AMERICAN ADMINISTRATIVE STATE: PROHIBITION IN THE TAFT COURT ERAt ROBERT POST* ABSTRACT This Article offers a detailed analysis of major Taft Court decisions involving prohibition, including Olmstead v. United States, Carroll v. United States, United States v. Lanza, Lambert v. Yellowley, and Tumey v. Ohio. Prohibition,and the Eighteenth Amendment by which it was constitutionally entrenched, was the result of a social movement that fused progressive beliefs in efficiency with conservative beliefs in individualresponsibility and self-control. During the 1920s the Supreme Court was a strictly "bone-dry" institution that regularly sustained the administrative and law enforcement techniques deployed by the federal government in its t This Article makes extensive use of primary source material, including the papers of members of the Taft Court. All unpublished sources cited herein are on file with the author.
    [Show full text]
  • Building the Federal Judiciary (Literally and Legally): the Monuments of Chief Justices Taft, Warren, and Rehnquist†
    The Addison C. Harris Lecture Building the Federal Judiciary (Literally and Legally): The † Monuments of Chief Justices Taft, Warren, and Rehnquist * JUDITH RESNIK ABSTRACT The “federal courts” took on their now familiar contours over the course of the twentieth century. Three chief justices—William Howard Taft, Earl Warren, and William Rehnquist—played pivotal roles in shaping the institutional, jurisprudential, and physical premises. Taft is well known for promoting a building to house the U.S. Supreme Court and for launching the administrative infrastructure that came to govern the federal courts. Earl Warren’s name has become the shorthand for a jurisprudential shift from state toward federal authority; the Warren Court offered an expansive understanding of the role federal courts could play in enabling access for a host of new claimants seeking an array of rights. William Rehnquist is identified with limiting both rights and access in favor of state court and of executive authority. He has been less well appreciated for his role in changing the institutional capacity of the federal courts. During the Rehnquist era, the budget of the federal courts doubled as staff and facilities expanded, in part by way of the largest federal building program since the New Deal. Over the course of the twentieth century and under the leadership of all three chief justices, the judiciary gained an increasingly robust corporate persona. Judges shifted their sights from “court quarters” to custom-designed courthouses † Copyright © 2012 Judith Resnik. * Arthur Liman Professor of Law, Yale Law School. All rights reserved. Judith Resnik. This Lecture built on and is related to the book Representing Justice: Inventions, Controversies, and Rights in City-States and Democratic Courtrooms (2011), co-authored with Dennis Curtis.
    [Show full text]
  • THE SUPREME COURT OPINION AS INSTITUTIONAL PRACTICE: DISSENT, LEGAL SCHOLARSHIP, and DECISIONMAKING in the TAFT COURT Robert
    THE SUPREME COURT OPINION AS INSTITUTIONAL PRACTICE: DISSENT, LEGAL SCHOLARSHIP, AND DECISIONMAKING IN THE TAFT COURT Robert Post School of Law (Boalt Hall) University of California at Berkeley Berkeley, California 510-642-9523 FAX: 510-643-2672 Working Paper 2001-1 Working Papers published by the Institute of Governmental Studies provide quick dissemination of draft reports and papers, preliminary analysis, and papers with a limited audience. The objective is to assist authors in refining their ideas by circulating results and to stimulate discussion about public policy. Working Papers are reproduced unedited directly from the author’s page. 1 Robert Post Draft 11 THE SUPREME COURT OPINION AS INSTITUTIONAL PRACTICE: DISSENT, LEGAL SCHOLARSHIP, AND DECISIONMAKING IN THE TAFT COURT† In 1921, when William Howard Taft became Chief Justice, the Supreme Court did not occupy the serene and imposing marble building that has since become its contemporary icon.1 Its courtroom was instead located in the old Senate Chamber, whose intimate, elegant surroundings echoed with the debates of Webster, Clay, and Calhoun.2 Its administrative staff and offices were scattered haphazardly and inefficiently throughout the Capitol.3 It was Taft who, with great skill and patience, seized the occasion to extract from Congress the resources to construct and design the present structure,4 which, in the words of its architect Cass Gilbert, was intended to † I am very grateful for the advice and insight of friends and colleagues. I would particularly like to thank Paul Carrington, Jesse Choper, Meir Dan-Cohen, Mel Eisenberg, Dan Farber, Phil Frickey, Barry Friedman, Howard Gillman, Morton Horowitz, Laura Kalman, Robert Kagan, Larry Kramer, David Lieberman, Sandy Levinson, David and Miranda McGowan, Paul Mishkin, William Nelson, Judith Resnik, Dan Rubinfeld, and Reva Siegel.
    [Show full text]
  • Inside the Taft Court: Lessons from the Docket Books, 2015 Sup
    Notre Dame Law School NDLScholarship Journal Articles Publications 2016 Inside the Taft ourC t: Lessons From the Docket Books Barry Cushman Notre Dame Law School, [email protected] Follow this and additional works at: https://scholarship.law.nd.edu/law_faculty_scholarship Part of the Antitrust and Trade Regulation Commons, Commercial Law Commons, Courts Commons, First Amendment Commons, Judges Commons, Jurisprudence Commons, Labor and Employment Law Commons, Legal History Commons, and the Supreme Court of the United States Commons Recommended Citation Barry Cushman, Inside the Taft Court: Lessons From the Docket Books, 2015 Sup. Ct. Rev. 345 (2016). Available at: https://scholarship.law.nd.edu/law_faculty_scholarship/1243 This Article is brought to you for free and open access by the Publications at NDLScholarship. It has been accepted for inclusion in Journal Articles by an authorized administrator of NDLScholarship. For more information, please contact [email protected]. Notre Dame Law School NDLScholarship Journal Articles Publications 2016 Inside the Taft ourC t: Lessons From the Docket Books Barry Cushman Notre Dame Law School, [email protected] Follow this and additional works at: https://scholarship.law.nd.edu/law_faculty_scholarship Part of the Antitrust and Trade Regulation Commons, Commercial Law Commons, Courts Commons, First Amendment Commons, Judges Commons, Jurisprudence Commons, Labor and Employment Law Commons, Legal History Commons, and the Supreme Court of the United States Commons Recommended Citation Cushman, Barry, "Inside the Taft ourC t: Lessons From the Docket Books" (2016). Journal Articles. 1243. https://scholarship.law.nd.edu/law_faculty_scholarship/1243 This Article is brought to you for free and open access by the Publications at NDLScholarship.
    [Show full text]
  • A 90 Day Study a History of Our Country's Judicial System The
    A 90 Day Study A History of Our Country’s Judicial System The United States Supreme Court: Landmark Decisions and the Justices Who Made Them February 20, 2017 – June 19, 2017 Featuring Essays by Constituting America’s Guest Constitutional Scholars 2 The United States Supreme Court: Landmark Decisions And The Justices Who Made Them Constitutional Scholar Essayists Steven H. Aden, Senior Counsel, Alliance Defending Freedom James D. Best, Author of Tempest at Dawn, a novel about the 1787 Constitutional Convention; Principled Action, Lessons from the Origins of the American Republic Robert Lowry Clinton, Professor and Chair Emeritus, Department of Political Science, Southern Illinois University Carbondale; Author, Marbury v. Madison; Judicial Review Daniel A. Cotter, Adjunct Professor, The John Marshall Law School; Immediate Past President, The Chicago Bar Association Marshall DeRosa, Professor of Political Science, Florida Atlantic University, Boca Raton, Florida Nick Dranias, President, Compact for America Educational Foundation The Honorable David Eastman, State Representative, Alaska House of Representatives; West Point graduate, former Captain, United States Army; Firefighter Richard Epstein, Inaugural Laurence A. Tisch Professor of Law, New York University School of Law; Peter and Kirstin Bedford Senior Fellow, Hoover Institution Allen C. Guelzo, Henry R. Luce Professor of the Civil War Era, and Professor of History, Gettysburg College; Author, Lincoln’s Emancipation Proclamation: The End of Slavery in America Joseph Knippenberg, Professor
    [Show full text]