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January 17, 2023
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Foreward
Bradford R. Clark, William Cranch Research Professor of Law, The George Washington University Law School.
A Conversation Regarding the Legacy of Justice Ruth Bader Ginsburg
Hon. Stephen G. Breyer, Justice, United States Supreme Court, 1994–2022. Laura A. Dickinson, Oswald Symister Colclough Research Professor of Law, The George Washington University Law School.
Reflections on the Legacy of Justice Ruth Bader Ginsburg
Hon. Goodwin H. Liu, Associate Justice, Supreme Court of California. Hon. John B. Owens, Judge, U.S. Court of Appeals for the Ninth Circuit. Hon. Paul J. Watford, Judge, U.S. Court of Appeals for the Ninth Circuit. Bradford R. Clark, William Cranch Research Professor of Law, The George Washington University Law School.
Ruth Bader Ginsburg and a Jurisprudence of Legal Pluralism
Paul Schiff Berman, Walter S. Cox Professor of Law, The George Washington University Law School.
Order Without Formalism
Rachel Bayefsky, Associate Professor of Law, University of Virginia School of Law.
Justice Ginsburg’s Republican Jurisprudence
Daphna Renan, Peter B. Munroe and Mary J. Munroe Professor of Law, Harvard Law School.
The Discrete Charm of Leveling Down
Aziz Z. Huq, Frank and Bernice Greenberg Professor of Law, University of Chicago Law School.
The Orthodox, and Unorthodox, RBG: Administrative Law and Civil Procedure
Abbe R. Gluck, Alfred M. Rankin Professor of Law, Yale Law School. Anne Joseph O’Connell, Adelbert H. Sweet Professor of Law, Stanford Law School.
After Justice Ginsburg’s First Decade
Amanda L. Tyler, Shannon Cecil Turner Professor of Law, University of California, Berkeley School of Law.
“In Barron v. Mayor of Baltimore (1833), the Supreme Court held that the Bill of Rights applied to the federal government alone. Following the adoption of the Fourteenth Amendment in 1868, the Supreme Court reconsidered the rule of Barron. The Court first reaffirmed the rule of Barron and held that neither the Privileges or Immunities Clause nor the Due Process Clause made the Bill of Rights applicable to the states. It then entered a period of ‘absorption,’ where the Court held that the Due Process Clause guaranteed some minimal rights found in the Bill of Rights, but not necessarily the same rights. Ultimately, the Court announced a congruence principle: incorporated rights would be identical to textual rights, jot-for-jot. The congruence principle came with a limitation, however: only select provisions of the Bill of Rights would apply to the states. Nevertheless, selective incorporation is ongoing, as the Court has declared three provisions of the Bill of Rights incorporated in the last decade, and there are other provisions in the Bill of Rights and elsewhere in the Constitution that the Court may yet declared incorporated.
Incorporation may be the most consequential development in the Constitution’s history. But the Court’s record on incorporation is not a flattering one. This Article reviews the troubled history of incorporation and considers the arguments for incorporating the remainder of the Bill of Rights and provisions of the Constitution beyond the Bill of Rights…”
* Judge, U.S. Court of Appeals for the Ninth Circuit; Senior Lecturer in Constitutional Law, William S. Boyd School of Law, University of Nevada, Las Vegas.
“In Bolling v. Sharpe (1954), a companion case to Brown v. Board of Education, the Supreme Court thought it ‘unthinkable’ that the Equal Protection Clause would not apply to the federal government as well as the states and declared it ‘reverse incorporated’ through the Due Process Clause of the Fifth Amendment. The Equal Protection Clause is the most familiar example of reverse incorporation, but it is neither the first nor the only provision of the Constitution that, by its terms, applies to the states alone, but which the Supreme Court has made applicable to the federal government through the Due Process Clause. The Court has, from an early period and throughout its history, systematically ignored the Constitution’s signals dictating to which level of government a provision applies. Aside from the Equal Protection Clause, the most important of these reverse incorporated provisions is the Contracts Clause—which was among the most litigated clauses of the nineteenth century— but there are other clauses that have been effectively reverse incorporated against the federal government as well. What has resulted is a congruent Constitution, a series of good government provisions that the Court has treated as universals rather than binding only the government identified in the Constitution. The Court has made little effort to justify its reverse incorporation decisions through anything more than the amorphous principle of ‘due process.’ One consequence is that reverse incorporated provisions are substantively congruent, but textually discordant.
This Article reviews the history of reverse incorporation, most of which has not been told before. The Article argues that there is nothing ‘unthinkable’ about the Constitution requiring different things of the states and the federal government, and that in the process of creating a congruent Constitution the Court has overenforced some provisions against the federal government and underenforced others against the states.”
* Judge, U.S. Court of Appeals for the Ninth Circuit; Senior Lecturer in Constitutional Law, William S. Boyd School of Law, University of Nevada, Las Vegas.
“Amidst the whirl of commentary about how the U.S. Supreme Court has become increasingly textualist and what precise shape modern textualism should take, the Court’s continued reliance on one decidedly atextual interpretive tool has gone largely unnoticed — the common law. Indeed, the common law has played an underappreciated, often dispositive, gap-filling role in statutory interpretation for decades, even as the textualist revolution has sidelined other non-text-focused interpretive tools. But despite the persistent role that the common law has played in statutory interpretation cases, the use of common law rules and definitions as an interpretive resource is surprisingly understudied and undertheorized in the statutory interpretation literature.
This Article provides the first empirical and doctrinal analysis of how the modern Supreme Court uses the common law to determine statutory meaning, based on a study of 602 statutory cases decided during the Roberts Court’s first fourteen and a half Terms. The Article catalogs five different justifications the Court regularly provides for consulting the common law, as well as three different methods the Court uses to reason from the common law to statutory meaning. The Article also notes several problems with the Court’s current use of the common law to determine statutory meaning.”
* Professor of Law, Georgetown University Law Center.
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