Presidential Commission on the Supreme Court of the United States
2021) (written testimony of Samuel Moyn, Henry R. Luce Professor of Jurisprudence and Professor of History, Yale University), https://www.whitehouse.gov/wp-content/uploads/2021/06/Moyn-Testimony.pdf.
- ↑ See, e.g., W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943) (finding that the First Amendment protected Jehovah’s Witness students from compulsorily saluting the American flag in public schools); Brown v. Bd. Educ., 347 U.S. 483 (1954) (finding public school segregation unconstitutional under the Equal Protection Clause); Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969) (finding that the First Amendment prevented a public school from punishing students for peacefully protesting the Vietnam War through the wearing of black armbands); Planned Parenthood v. Casey, 505 U.S. 833 (1992) (striking down a Pennsylvania abortion restriction as creating an undue burden on women seeking abortions); Obergefell v. Hodges, 576 U.S. 664 (2015) (finding that the Fourteenth Amendment requires states to license and recognize same-sex marriages).
- ↑ See, e.g., Presidential Commission on the Supreme Court of the United States 2, 12 (June 30, 2021) (written testimony of Nikolas Bowie, Assistant Professor of Law, Harvard Law School), https://www.whitehouse.gov/wp-content/uploads/2021/06/Bowie-SCOTUS-Testimony-1.pdf (“[A]s Tocqueville observed even before this history began, judicial review is also antidemocratic as a matter of theory.”); Adrienne Stone, Democratic Objections to Structural Judicial Review and the Judicial Role in Constitutional Law, 60 U. Toronto L. Rev. 109 (2010).
- ↑ See, e.g., Presidential Commission on the Supreme Court of the United States 3, 16 (July 20, 2021) (written testimony of Vicki C. Jackson, Laurence H. Tribe Professor of Constitutional Law, Harvard Law School), https://www.whitehouse.gov/wp-content/uploads/2021/07/Jackson-Testimony.pdf (“[T]he current system makes vacancies depend on contingent, random events.”).
- ↑ Presidential Commission on the Supreme Court of the United States 3, 1 n.2 (July 20, 2021) (written testimony of Jamal Greene, Dwight Professor of Law, Columbia Law School), https://www.whitehouse.gov/wp-content/uploads/2021/07/Greene-Testimony.pdf.
- ↑ Supreme Court Nominations (1789–Present), U.S. Senate, https://www.senate.gov/legislative/nominations/SupremeCourtNominations1789present.htm.
- ↑ See, e.g., Presidential Commission on the Supreme Court of the United States 3, 15 (July 20, 2021) (written testimony of Nan Aron, President, Alliance for Justice), https://www.whitehouse.gov/wp-content/uploads/2021/07/Aron-Testimony.pdf (“If the Court proceeds to wipe away reproductive rights, in spite of decades of precedent and overwhelming public support for those rights, then the only possible conclusion is that reform is imperative.”).
- ↑ See Alison Gash & Angelo Gonzales, School Prayer, in Public Opinion and Constitutional Controversy 62, 68–70, 77 (Nathaniel Persily, Jack Citrin & Patrick J. Egan eds., 2008) (showing that, in the 1970s, over seventy percent of the public disapproved of the Court’s school prayer decisions); Amy E. Lerman, The Rights of the Accused, in Public Opinion, supra, at 42–43 (noting that “[i]n many ways” the Warren Court’s criminal procedure decisions “were out of step with public opinion and may even have shifted public opinion against the Court’s pro-rights position”).
- ↑ See Brown v. Bd. of Educ., 347 U.S. 483, 495 (1954) (“Separate educational facilities are inherently unequal.”); J.M. Balkin & Sanford Levinson, The Canons of Constitutional Law, 111 Harv. L. Rev. 963, 1016 (1998) (describing Brown as “[t]he classic example” of a canonical case); Jamal Greene, The Anticanon, 125 Harv. L. Rev. 379, 381 (2011) (describing “the constitutional canon” as “the set of decisions whose correctness participants in constitutional argument must always assume” and naming Brown as “the classic example”). For discussions of the resistance to school desegregation, see Justin Driver, The Schoolhouse Gate: Public Education, the Supreme Court, and the Battle for the American Mind 242–314 (2018); Michael J. Klarman, From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality 290–442 (2004).
- ↑ See Barry Friedman, The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution 16 (2009) (arguing that the Supreme Court “ratif[ies] the American people’s considered views about the … Constitution”); Jeffrey Rosen, The Most Democratic Branch: How the Courts Save America 3 (2006) (arguing that Supreme Court decisions often reflect public opinion better than Congress). But see Devins & Baum, supra note 29, at xi (arguing that the Justices are “elites who seek to win favor with other elites,” rather than with the general public); Justin Driver, The Consensus Constitution, 89 Tex. L. Rev. 755, 757–58 (2011) (doubting that Supreme Court decisions “reflect[] the ‘consensus’ views of the American public,”
32 | December 2021
