Top Ten Religious Liberty Developments of 2020

Link

How the Sausage is Made by SCOTUS

 

Harvard Law Prof  Adrian Vermeule on how things work at SCOTUS: 

 1: Left-liberal jurists fabricate new “rights” 

2: Right-liberal jurists condemn 1 

3: Right-liberal judges appointed 

4: Right-liberal judges decline to overturn “rights” from (1) 

5: Right-liberal jurists proudly point to (4) as evidence of “independence” 

6: Repeat indefinitely

 

 Link

Topical Index to Videos

 I am providing this list of videos and topics covered. Just in case you want to review a particular subject.

video number 1--Introduction

video number 2--Marbury

video number 3--Marbury & McCardle

video number 4--Great Debate

video number 5--Martin v Hunter;s Lessee/Adeq & Indep State Grounds

video number 6--Justiciability/Standing/ Brilmayer Article

video number 7- 3rd Party Standing, Taxpayer Standing/Line Item Veto

video number 8- Mootness/Ripeness/Political Questions

video number 9-Art. V and Amendment Process

video number 10--electoral federalism

video number 11--McCulloch (Bank of US)Gibbons & Cooley(Commerce)

video number 12--Commerce Clause thru Wickard & Civil Rights Cases

video number 13--Commerce Lopez, Morrison & Raich

video number 14--(two classes on 14--break comes around 43:15 mark)Sebelius & Spending Power

video number 15--Federalism as Sovereignty, Commandeering, etc

video number 16--11th Amendment (very short video)

video number 17-Art, IV P & I Cl; SDP & Dred Scott

video number 18-Civil War Amendments; Slaughterhouse; Saenz

video number 19-Incorp; McDonald; Standards of Review

video number 20-Lochner; Caroline Products

video number 21-Griswald (SDP) & 9th Am

video number 22-Roe v Wade

video number 23-Casey/Gonzalez Abortion

video number 24-Glucksberg/Obergefell/Equal Protection Intro (George Washington hypo)

video number 25-Race Classifications/Loving/Plessy/Brown

video number 26-EPC & Gender Classifications/Reed thru VMI

video number 27-Washington v. Davis & Discriminatory Purpose

video number 28-"Benign" Discrimination/Gender

video number 29-Race-based Affirmative Action/Grutter

SCOTUS Protects the Right to Worship Against Covid Restrictions

This is a Con Law II decision. I am not--not--assigning it for Con Law I. But this is a major Free Exercise decision that some of you may be interested in. Here is a link:

Roman Catholic Diocese of Brooklyn v. Cuomo

 

And here is a favorite line from Justice Gorsuch concurring opinion:  "It is time—past time—to make plain that, while the pandemic poses many grave challenges, there is no world in which the Constitution tolerates color-coded executive edicts that reopen liquor stores and bike shops but shutter churches, synagogues, and mosques."

Grading Scale for Close Reading Papers

Here is how I graded them. I gave them a letter grade and assigned points based upon the letter grade. Here is the scale:

A+    125

A      110

B       90

B-      75

C/C+  65

The points were assigned to create a difference between the various letter grades.

 

The C/C+ papers were not bad; they were average, basically something like a grade of 5 on a scale of 9. But, of course, there are still 125 points up for grabs in the final.

 

The papers were good enough that I plan on coming up with a higher-than-usual grading curve. I will need to coordinate with the other section, but I doubt if there will be any (or more than a few) grades below 5.

 

Exam is Two Hours

 Just to clear up any confusion, the exam will be a two hour, completely open book (open internet) exam.

Basically one 750 word essay--a one hour question--but you get two hours to do a great job thinking about your answer, writing your answer clearly, and re-writing your answer to make it even better organized and more clear.

Optional Zoom Q & A Session: Thursday Nov 19

I will schedule an optional Q & A for Thursday, November 19 at 5 PM. This will give you some time to start thinking about questions for the exam.

Wednesday Nov 11 Zoom Discussion Topic

 Take the gender-based social security formula upheld in Califano and make it race-based instead.

In other words, suppose Congress enacted a law that permits African-American wage earners to exclude from the computation of their average monthly wages three more earning years than members of other racial groups. And that this resulted in a higher level of social security benefits for African-American recipients. 

Also assume that the purpose of this formula was to compensate for the economic inequality for African-Americans resulting from a history of societal discrimination.

In Califano the Court upheld the gender-based formula under intermediate scrutiny. How would the race-based formula be analyzed? Is it constitutional?

Optional Q & A Session Cancelled for November 12

 I will not be able to schedule an optional Q & A for this Thursday, November 12.

However, I will schedule an optional Q & A for next Thursday, November 19 at 5 PM. This will give you some time to start thinking about questions for the exam.

Week of Novmeber 9-13

 This is our last week of classes! Thank you for your hard work and good cheer.

 For next week please read these pages:

19. Casebook p. 756-767
 20. Casebook p. 777-787
 21. Casebook p. 807-822

 Zoom Session:  Only one zoom session this week—Wednesday November 11 at 5 PM

Class Video Links

Video 28

 https://unl.box.com/s/lc4s2zq3smr00od18hlr2biti2cfx3f8

Video 29

 https://unl.box.com/s/czoj531iicj273k07fpwsqm3wu8jdgot

 

 

Grading and Final Exam

 Here is what the syllabus says about grading:

Grading: Your grade for the course will be based upon a total of 250 points calculated as follows:

I.                 125 points will be assigned to a short single-spaced paper of 7-9 pages (with brief footnotes) on a close reading of one of the cases or law review articles I will list in a memo explaining this paper.

II.                100 points will be assigned to the final exam essay question.

III.             25 points will be assigned to regular attendance for our zoom discussion sessions. On the final exam, I will ask you to affirm under the Honor Code that you have not had more than 3 unexcused absences from zoom discussion sessions. If you are able to affirm this, you will receive 25 points toward your grade. If you are unable to affirm this, you will receive zero points. Please take attendance seriously. It is particularly important in remote classes in which the only opportunity you will have to participate in discussions will be via zoom.

 

--So the Final exam will count for 125 points. 25 points are for attendance as above.

--The other 100 points will be assigned to one essay question of approximately 750 words or less. 

--The exam will be for a total of two hours. It will be open book.

 --I am giving you ample time to write a 750-word essay question. 

--Take some time to think before you write and to write (and edit) your essay clearly and lucidly.

--Most of the points will be allocated to thoughtful & in-depth reasoning & analysis, not to conclusory assumptions.

Week of Novmeber 2-6

 For next week please read these pages:

 Casebook p. 683-700 

 Casebook p. 718-729;737-756

Zoom Session:  Only one zoom session this week—Wednesday November 4 at 5 PM

Class Video Links

Video 25

 https://unl.box.com/s/1pdgxvg7so3gunec12u3fvqag69f3g7h

Video 26

 https://unl.box.com/s/pkmrpx8hwfv6fy3jr9n62ii138gr456o

Video 27 

https://unl.box.com/s/e09icpfuraroq087lbocczni24d46hn6

I will also show up for an optional Zoom Q & A session on Thursday November 5 @ 5 PM

Week of October 26 thru 30

 For next week, read these pages:

Casebook p. 594-617

Casebook p.636-648; Obergefell (p. 555-572)

Casebook p. 663-683 (Introduction to equal protection)

 

Zoom Session:  Only one zoom session this week—Wednesday October 28 at 5 PM

 

Class Video Links

 

Video 23

 https://unl.box.com/s/4nznq3z31v04mlmsof8ubip5alf0696e

  

Video 24

  https://unl.box.com/s/sou0529bcr0vocmcf6upzlh322i21nzj

 

 I will also show up for an optional Zoom Q & A session on Thursday October 29 @ 5 PM

Update on SCOTUS and Abortion

       Just this past Term the Court decided an abortion case, June Medical Services v. Gee, a case out of Louisiana involving an abortion law—The Unsafe Abortion Protection Act—that requires abortionists to have admitting privileges at a hospital located within 30 miles of the clinic where they perform abortions. The problem is that the Court had already declared a nearly-identical Texas law unconstitutional in Whole Women’s Health v. Hellerstedt.

       Chief Justice Robert’s, who had dissented in Whole Women’s Health, changed sides in June Medical and was the 5th vote to strike down the Louisiana law. The Chief said he still believes Whole Women’s Health was wrongly decided, but switched sides based upon stare decisis. But Roberts practiced a little judicial minimalism of his own; although he applied Whole Women’s Health as a binding precedent, he gutted much of the reasoning of that decision as itself inconsistent with Casey. Basically, he stated that if a law regulating abortion does not impose an undue burden on abortion, it should be upheld under a deferential rational basis test rather than a cost/benefit balancing test.

        Roberts’ controlling opinion in June Medical has already been cited by the Nebraska Attorney General in support of Nebraska’s recent ban on dismemberment abortions. So Roberts’ opinion in June Medical actually moved the dial a point or two back in favor of upholding reasonable laws restricting abortion.

         Justice Thomas responded in dissent to the Chief’s view of stare decisis as follows:

“The plurality and THE CHIEF JUSTICE…conclude that Louisiana’s law is unconstitutional under our precedents. But those decisions created the right to abortion out of whole cloth, without a shred of support from the Constitution’s text. Our abortion precedents are grievously wrong and should be overruled.”