Constitutional Context

A recent podcast (entitled “Libel to Stay”) explained why Free-Speech doctrines prevented Donald Trump from suing journalist Bob Woodward (or any other serious critic) for defamation.  So, on the flip side, one of this month’s podcasts addresses how the First Amendment recently saved the President as a defendant in a defamation suit brought by Stephanie […]

The National Park Service recently proposed to significantly limit the scope of demonstrations in front of the White House or on the National Mall, the nearby 1000-plus acre swath of green space, memorials, and other historic installations. The proposals were closely scrutinized (and criticized at length) during a round of public comment closing on October […]

One very intriguing case on the Supreme Court’s 2018-2019 docket is unlikely to make big headlines or be featured on the Sunday news shows.  In fact, it’s likely you’ll only hear about it from this podcast! Timbs v. Indiana illustrates a phenomenon that even lawyers can forget: that the Constitution’s first 10 amendments (commonly known […]

I get the ideas for the subjects of these podcasts from a variety of sources.  Some podcasts are suggested by decisions made, or soon to be made, by the Supreme Court or lower courts.  Others bounce off of controversies about legislative or other policy-changing proposals.  Occasionally, a public statement by an official – or a […]

Events surrounding the nomination of Judge Brett Kavanaugh to fill the vacancy on the U.S. Supreme Court illustrates how, on matters of Supreme Court nomination and confirmation, the U.S. Constitution is largely missing in action. To begin with, the Framers provided no minimal qualifications for who could serve as a Justice. As school kids learn, […]

So…having set the stage in Part One for the potential reversal of Roe v. Wade in the 1992 Planned Parenthood v. Casey decision, here’s the skinny on how Roe narrowly escaped: Justice Sandra O’Connor defied expectations by joining two other presumably anti-Roe justices to form a trio affirming its “central rule” that a pregnant woman […]

One of (if not THE) most controversial aspects of Judge Brett Kavanaugh’s nomination to succeed Justice Anthony Kennedy is what Kavanaugh’s elevation could mean for the modern scheme of abortion rights ushered in by the landmark 1973 case, Roe v. Wade.  President Trump’s promise to “put[ ] pro-life justices on the Court” has led many […]

In less than a month, the Supreme Court’s 2017-2018 Term will end – in a flurry of high-profile, controversial and contentious decisions.  Still undecided cases when this podcast was recorded probe the constitutionality of the Trump Administration Travel ban, the legitimacy of a baker declining on religious grounds to make a specialty cake to celebrate […]

The Court’s mid-May decision in Murphy v. National Collegiate Athletic Association got substantial news coverage because of the outcome.  A six-justice majority in Murphy invalidated the 1990’s Professional and Amateur Sports Protection Act, which had prevented state and local governments from operating sports-betting schemes or authorizing private casinos and individuals to do so. No wonder, […]

If you follow Supreme Court decision-making – and, after all, if you listen to this podcast – you’ve probably noticed the tendency of Supreme Court watchers, whether they are highly respected reporters or less thoughtful armchair pundits, to portray decisions as simple battles between “conservatives” and “liberals.”  Yet, attributing Supreme Court decision-making to just politics […]

Lawyers and laypersons alike can fall into the habit of thinking that, once the Supreme Court rules on the meaning and application of the Constitution, that settles the matter. Sure, we remember President Eisenhower having to send national-guard troops into Little Rock, Arkansas to enforce a school desegregation order.  And we know that some state […]

The tragic school shooting in Parkland, Florida shined a bright spotlight on the fact that 18-, 19- & 20-year olds can buy assault weapons in many states, even though they can’t purchase alcohol and exercise other privileges. Bills to raise the minimum-age for some weapons purchases are being seriously discussed nationally and in many states.  […]

Last month, while many Americans were agonized and outraged over students killed and injured by an automatic-weapon-toting shooter at a Parkland, Florida high school, Supreme Court Justice Clarence Thomas did something only a life-tenured jurist who doesn’t have to run for reelection could do – complain about too much gun control! Thomas’ February 20th statement […]

It’s not unusual that this Supreme Court Term has several cases about First Amendment protection for freedom of speech.   What IS unusual is that not one, not two, but three cases on the docket relate to a specialized, and somewhat obscure corner of Free Speech jurisprudence. I refer to the “Compelled Speech doctrine” – […]

If you followed the news on January 9th — and I KNOW that this podcast’s listeners are very well informed! — you know that Northern-California-based U.S. District Judge William Alsup issued a preliminary injunction ordering the Trump Administration to revive the DACA program (the Obama-era scheme of deferred deportation for the “Dreamers”).  The program was […]

Having devoted both of last month’s podcasts to aspects of “Federalism,” I certainly didn’t plan on returning to the subject so soon. But a podcast committed to how the latest controversies showcase the context behind key constitutional dynamics just can’t pass up the teaching moment afforded by Attorney General Sessions’ recent announcement that the Trump […]

The first Part of this month’s podcast explained the ongoing challenge posed by the Framers’ decision to make “federalism” a key pillar of the constitutional system they pioneered almost 240 years ago.  That podcast noted that, as in many recent-past years, the current Supreme Court Term features a federalism issue prominently on its docket. The […]

Do your ever stop to think about how many of your life activities are affected by laws passed and legal decisions rendered by officials of your STATE government? Whether we’re aware of it or not, it is state law – not national law – that provides the majority of the legal constraints and opportunities we […]

If you’re like most Americans, during the Thanksgiving holidays you made cellphone calls to relatives and friends, sent lots of email good wishes, and accessed websites for Cyber Monday online shopping.  So here’s a question:  While doing that did you think that, by voluntarily disclosing your location, telephone numbers, email addresses and personal financial information […]

Hearing so much discussion about what if any tax bill Congress will pass and how the Administration is affecting tax-policy deliberations reminds me of an eternal verity about the federal judiciary – namely, that Supreme Court justices and lower federal judges do not play a comparably significant or primary role in setting tax policy.  For […]

On Tuesday, December 5, the Supreme Court will hear oral argument in one of the most high-profile cases of its Term. Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission is sure to trigger substantial news coverage and strong opinions.  This podcast instead focuses on the case as a textbook example of three important realities about […]

You probably don’t need reminding about the controversy swirling around NFL players “taking a knee” during the national anthem to protest mistreatment of racial minorities. The dispute has been a regular subject in speeches and tweets by the President.  It’s been prominent on news, sports, and talk shows. What I find especially interesting as a […]

The U.S. Senate recently confirmed President Trump’s choice to become Solicitor General of the United States.  This reminded me of how important and interesting this position is to the Supreme Court and the adjudication of constitutional and other questions. The U.S. Solicitor General is the 3rd-highest official in the Justice Department and is expected to […]

Happy “First Monday in October!” — the day the Supreme Court comes back from summer recess and begins oral arguments and case decisions through next June. This Term the Supreme Court is jumping right into its work. The day after “First Monday,” the justices are confronting one of the most consequential and long-delayed questions in […]

The recent tragedy in Charlottesville – when compared to a different event occurring at the same time in a foreign land – provides an especially graphic illustration of how U.S. free-speech doctrines differ from the approaches of other major democratic nations. As Americans are painfully aware, on August 12th, 2017 neo-Nazis and white supremacists gathered […]

You’ve got to love a Supreme Court decision in which six justices in the majority split 4 to 2 over a footnote. That’s right:  In ruling that Missouri violated the Constitution by administering a grant program in a way that discriminated against a religious-affiliated entity, the dispute boiled down to whether the justices would fully […]

“Executive privilege” is in the air a lot these days.  Amid speculation about whether President Trump would claim executive privilege to limit the testimony of officials at congressional hearings — and with high-profile officials declining to answer legislator questions amid hints that they wanted to give the President room to eventually claim executive privilege — […]

Tradition!  No — you don’t need to worry that I’m going to break into Tevye’s song from Fiddler on the Roof! Rather, I refer to another tradition recently taking place at the Supreme Court chamber in Washington, D.C.   On June 12, 2017, newest Justice Neil Gorsuch delivered his first written judicial opinion, reflecting the unanimous […]

By the time this podcast posts, the controversy over the President’s May 9th firing of FBI Director James Comey will have gone through innumerable news cycles and countless commentaries. So, what can a podcast committed to placing controversies in their “constitutional context” and bringing light rather than more heat seek to add?  One contribution might […]

Welcome to CONSTITUTIONAL CONTEXT. This is Professor Glenn Smith with another “five-minute bite of background about the Court and Constitution.” Viewers of the July 22, 2015 Rachel Maddow Show on MSNBC probably thought that Ms. Maddow’s interview with former Senator (and presidential candidate) Rick Santorum was just another argument about same-sex marriage. But the Maddow/Santorum […]

Recent Senate inaction (the failure last year to consider President Obama’s Supreme Court nominee) and Senate actions (the political maneuvering over President Trump’s nominee, now-Justice Neil Gorsuch) underscore the extent to which – for better or for worse – the Constitution’s framers left the independence and reputation of the federal judiciary up to the judgment […]

For the second month in a row, this podcast focuses on religious discrimination.  But this month’s context is very different. Last month we explored the legal path that opponents of the controversial Trump Administration travel-ban must tread to show that the ban should be treated as religious discrimination. By contrast, this month’s religious-discrimination focus stems […]

Continuing controversy over whether the Trump Administration’s travel-ban unconstitutionally discriminates against Muslim believers brings into sharp relief a perennial, complicated question of constitutional law. Regularly, judges and others assessing governmental action face this general question:  When should a law or policy that is not discriminatory “on its face” nevertheless be treated as though it discriminates […]

This podcast begin with a riddle:  “What do former California governor George Deukmejian, the Cleveland Choral Arts Association, and the NFL all have in common?” Give up?  The answer is that each was among the individuals and organizations filing “amicus” briefs (also known as “friend of the Court” briefs) over the last several years with […]

Only half facetiously, I suggest to my students that, when there’s a lull in a cocktail-party conversation, they should spice things up by asking, “Should any citizen who thinks the government is acting illegally be able to challenge the government in court?” When partygoers reply, “of course — that’s what the rule of law means […]

Now that President Trump has nominated Judge Neil Gorsuch – identified with the “original intent” school of constitutional interpretation – to replace Justice Antonin Scalia (the justice popularizing the original intent approach on the modern Court), CONSTITUTIONAL CONTEXT listeners are likely to hear lots of media reporting and pundit commentary about “originalism.” The numerous approaches […]

Regardless of their political ideology or partisan stripe, modern presidents regularly raise constitutional controversies when they exercise executive authority. President Obama’s 2014 DAPA program (which would have postponed deportability for several million undocumented parents of U.S. citizens and permanent residents) was twice declared illegal by lower federal courts. And, the Trump presidency has already generated […]

Now that, for the second time in 16 years, the candidate for president who won the most popular votes has been denied the presidency, the media and public are paying much more attention to the Electoral College — that strange institution our constitutional founders bequeathed us for choosing our nation’s chief executive.  People now understand […]

In calling for tougher gun-control laws after tragic shootings at schools and other public venues, advocates despairing of “common-sense” national measures suggest that meaningful gun control will more likely emerge from state and local governments. Well, right here in San Diego we are testing this speculation.  Our County is at the center of a lawsuit […]